REPRESENTATIVE-ELECT FROM UTAH. 


The Great Charter is our only guide. May 
the Constitution remain inviolate. 


SPEECH 


OF 


Hon. CHARLES E. LITTLEEIELD, 


OF' NIAINE, 


IN THE 


HOUSE OF REPRESENTATIVES, 


Tuesday, January 23, 1900. 


W-A.SMING'TOM. 

1900 . 



1 






HON. CHARLES E. LITTLEFIELD. 


The House havingr under consideration the following resolution, submitted 
by the minority of the committee as a substitute for the resolution reported 
by the majority: 

"’Resolved, That Brigham H. Roberts, having been duly elected a representa¬ 
tive in the Piftv-sixth Congress from the State of Utah, with the qualifications 
requisite for admission to the House as such, is entitled, as a constitutional 
right, to take the oath of office prescribed for members-elect; his status as a 
polygamist, unlawfully cohabiting with jilural wives, affording constitutional 
ground for expulsion, but not for exclusion from the House ”— 

Mr. LITTLEFIELD said: 

Mr. Speaker: The minority of yonr committee, unable after a 
long, arduous, thorough, and laborious investigation of this case, 
to agree with the majority, beg leave now to submit, with all due 
and becoming modesty, their views upon the legal propositions 
involved. The minority freely concede to the majority industry, 
integrity, honesty, and ability, but we can not surrender to them 
our judgments. We understand that we were invested by the 
House with a duty and a trust. It was that of investigating the 
right of the gentleman from Utah to a seat in this House. This 
involved upon the part of the committee the ascertainment of 
the facts and the law, not as we might wish them to be, not as 
anyone else might wish them to be, but as they in fact exist. We 
have discharged that duty so far as we have been able, and I pro¬ 
pose in the time allotted to me to submit our views upon these 
propositions. Upon the facts we agree. 

We believe that the House of Representatives is now sitting 
under the clause of the Constitution which makes it the judge of 
the election, the return, and the “qualifications of” the gentleman 
from Utah. We believe that it is the duty of the House of Repre¬ 
sentatives to now sit as a judge, to determine what qualifications 
are required and whether or not the gentleman from Utah possesses 
those qualifications. We do not believe, when this House sits as 
'^lis great constitutional court, that it sits here to legislate and 
. , ' " We believe it sits here to ascertain and 

hat qualifications are prescribed by tlie 
le whether or not the gentleman from 
ifications. 

1 ___ • A • 



zenshir'i^^^^’'^^^^^®^^® prescribed by the Constitution are age, citi- 


of twentyshall be a Representative who shall not have attained to the age 
who shall nffee years and beoii s .ven years a citizen of the United States, and 
be chosen.— %when ele^ ted, be an inhabitant of that State in which he shall 


istitution, Article I, section 3.) 


P 


Cong. Record Off,] 
la Ra. ’Ui 


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IP 

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3 

The report of the committee finds that the gentleman from 
Utah possesses these qualifications. Here the majority and the 
minority part company. The majority hold that this House sit¬ 
ting here. alone, of its independent action, can add to the qualifica¬ 
tions mentioned in the Constitution. The minority hold that they 
can not add to them. The minority hold that when this House 
sits as this great constitutional court and ascertains the qualifi¬ 
cations required, and ascertains that the gentleman from Utah 
]jossesses these qualifications, that it is its duty under the Consti¬ 
tution to render a judgment in accordance therewith, no matter 
what the consequences may be, because we believe the Constitution 
to be, to quote the language of the gentleman from Ohio [Mr. 
TaylerJ , ‘ ‘ the supreme law of the land. ” 

I call attention to the several propositions relied upon b}" the 
majority, in nrder that we may understand at the outset the ques¬ 
tions which divide us. 

The majority state, first, that they propose to exclude the gentle¬ 
man from Utah— 

By reason of his violation of the Edmunds law. 

Second—and this is the main ground: 

By reason of his notorious and defiant violation of the law of the land, of 
the decisions of the Supreme Court, and of the prochimations of the Presi¬ 
dents, holding himself above the law and not amenable to it. No govern¬ 
ment could possibly exist in the face of such practices. He is in open war 
against the laws and institutions of the country whose Congress he seeks to 
enter. 

This proposition, stripped of its verbiage and rhetoric, simply 
means that this House of Representatives, here and now, can create 
and impose qualifications or disqualifications not mentioned in the 
Constitution, by its own independent, individual action. 

This is the proposition of which, as I understand, the majority 
are principally enamored. 

They say, on page 40 of their report: 

The principles underlying the second main ground of disqualification, 
hereinbefore asserted, have already been fully discussed, but the ground is 
appropriately restated at this point. 

We assert before the House, the country, and history— 

It seems that history is standing around here somewhere look¬ 
ing at us— 

that it is absolutely and impreguably sound, not to be effectively attacked, 
consonant with every legislative precedent, in harmony with the law and 
with the text-books on the subject. 

This is the first proposition to which I propose to address my¬ 
self. It involves the construction of the Constitution and tran¬ 
scends in gravity and importance all other questions. Refiect. for 
a moment. Let us see what the proposition is. This House by its 
own independent action can add a disqualification or a qualifica¬ 
tion not mentioned in the Constitution. 

At this time it is proposed to add the disqualification of polyg¬ 
amy. At a future time it may be proposed to add the disqualifi- ‘ 
cation of adultery, of fornication. At another time it may be 
])roposed to add the disqualification of membership in a trust or 
an octopus, or the attorney of a trust or an octopus, or any mis¬ 
demeanor or obnoxious conduct, and so on ad infinitum. 

No man when he is elected to this House under this proposition, 
suggested by the majority, can ever tell whether he possesses the 
qualifications, or is affected by the disqualifications, that are thus 
to be asserted. It is only when he stands at the threshold of the 
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House and knocks at the door, that he discovers that the House of 
Representatives, in the exercise of its wisdom, deeming him obnox¬ 
ious, then creates and declares the disqualification that may exclude 
him. No constituency can know whether its choice is eligi ble; in 
fact, between the election, and organization, popular excitement 
may demand the imposition of a disqualification, before unthought 
of. and their choice, though qualified when elected, would be ineli¬ 
gible when he presented himself for admission. And inasmuch 
as it is suggested by the gentleman from Ohio [Mr. Tayler], 
and well suggested, and in accordance with the law, that the 
action of this House does not conclude the action of another, the 
man who is admitted to-day may be excluded to-morrow. 

The man who is excluded to-day may be admitted to-morrow. 
I submifthat this proposition, so general and so indeterminate, 
can only be justified by the “ general-welfare ” clause in the Con¬ 
stitution. In order to be accurate and perspicuous, I propose, as 
I go on with these suggestions, to allude to this proposition as 
the “ general-welfare ” projposition. 

To this nebulous, elastic, dangerous “general-welfare” propo¬ 
sition, indefinite as space, without limit or boundary, we enter 
our absolute dissent. As against it, we place ourselves upon the 
sound bed rock of the Constitution. We say that the right and 
the privilege of becoming a member of this House is a great right 
and a high privilege; we believe that that right is defined and the 
conditions prescribed by the Constitution; that it is surrounded 
by legal rules, protected by legal principles. It is not a varying 
rule, to be aft’ected by the vicissitudes of changing political majori¬ 
ties, or to be affected, if you please, by fickle and evanescent, public 
agitation. The rule that we rely upon is plain, simple, and well 
settled. He “may run that readeth it.” 

It stands undisturbed by the mutations and changes of time. 
It is without variableness, neither shadow that is cast by 
turning. Except as it may be modified by constitutional amend¬ 
ment, it is “the same yesterday, and to-day, and forever.” It 
changes not, when the majority changes in this body, nor does it 
change, when the morality changes in this body. Against its 
foundations the waves of popular, transitory, agitation beat in 
vain. It is a distinct, well-defined right. 

Bearing in mind, if you please, the proposition of the majority, 
that this House, alone, c.an establish a disqualification, 1 wish to 
ask the House to allow me to review the historical conditions tnat 
surrounded the founders of this Government, when they built the 
Constitution under which we live. It is well and fitting. The 
Supreme Court of the United States, in the great constitutional 
case of KiJbourne vs. Thompson, in order to ascertain the limita¬ 
tions on the power of the House of Representatives to punish for 
contempt, and to define the rights and privileges of its members, 
went back to an English statute of 1688. I take the House back to 
1763. That year signalized a great period in the development of 
English liberty. John Wilkes then became famous, in the strug¬ 
gle for liberty and freedom. 

In 1763 and 1763 he published a series, of what were then called, 
libels. In the main they consisted of caustic criticism and ter¬ 
rible arraignment of the ministry which was then controlling the 
destinies of England. They were drastic, severe, pointed; because 
John Wilkes wielded a pen that was the mortal foe of oppression 
and autocracy. 

Shortly after April 33,1763, the date of the publication of No. 45 
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5 

of the North Briton, a prosecution was begun against him for 
the publication of two libels—the ‘‘Essay on women” and No. 45 
of the N orth Briton—and he was summarily committed to the 
Tower. He was then a member of the House of Commons. Upon 
habeas corpus proceedings he was immediately released, because 
his arrest was held to be a violation of his privilege as a member. 

Shortly after that Wilkes left England and went to Paris. In 
1764, after , he had thus fled the Kingdom, in order to escape the 
consequences of these prosecutions, he was expelled from the 
House for the first libel, his “ Essay on women.” Let it not be 
forgotten that Wilkes was then fighting the great battle for free 
thought and free speech—the liberty and freedom of the press— 
the right to publish, subject to legal responsibilities, just, fair, 
honest, and truthful criticisms of public men or measures. That 
right was vindicated by Wilkes, he “ paying with his person ” in 
1769. In these days all concede, that the liberty and freedom of 
the press, is simply indispensable to the preservation of the liber¬ 
ties of a free people. The very presence here in these two Halls 
of Congress, of the representatives of the press, is of the greatest 
value to the Republic, for the conservative influence that it exer¬ 
cises upon national legislation. The right of the press in this land 
to-day to criticise, and condemn if need be, every officer, from the 
President of the United States down to the humblest hogreeve or 
field driver, is the result largely of the courage and resolution of 
John Wilkes. 

In 1769 Wilkes, having returned to England, received his sen¬ 
tences for two libels and was committed to prison in the execution 
thereof. He had been elec ted a member of the Parliament which sat 
in 1768. not the same Parliament from which he was expelled in 
1764, but a subsequent Parliament. He published a short criti¬ 
cism of a letter written by Lord Weymouth. He was again ex- 
jielled, and I will read the resolution of expulsion, because I want 
the House to understand from this historical source the origin 
of the contrast between, this power of exclusion and expulsion, 
as it rests upon sound historical foundation. His second expul¬ 
sion was February 3, 1769, and the resolution read as follows: 

That .John Wilkes, esq., who hath expressed himself the author and pub¬ 
lisher of an insolent, scandalous, and seditious libel— 

That was the article prefacing and criticising the letter of Lord 
Weymouth— 

and who has been convicted in the Court of Queen’s Bench of having printed 
and published a seditious libel and three obscene, seditious, and impious libels, 
and been sentenced to twenty-two months’ imprisonment, be expelled this 
House, and that a warrant be issued for a new election.— Fitzgerald's Life of 
John Wilkes. Volume II, page 37. 

I beg the House to note this: This resolution of expulsion, Feb¬ 
ruary 3, 1769, expelled Wilkes, among other things, for an offense 
for which he had already been expelled in 1764, and for two offenses, 
both of which had been committed at least five years before that 
Parliament sat. and for which he was then imprisoned, so that he 
could not appear in the House of Commons. That was the expul¬ 
sion of February 3,1769. What was the next step in this struggle? 

Wilkes was returned again immediately, and unanimously, from 
the county of Middlesex. What did the House of Commons do 
then? On the 17th day of February, 1769, they passed a resolu¬ 
tion reading as follows: 

Resolved., That John Wilkes, esq., having been in this session of I’arliament 
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expelled this House, was, and is incapable of being elected a member to serve 
in the present Parliament.— Cavendish^ Debates^ volume 1, page 231. 

Note the language: 

Was and is incapable of being elected a member, and that the late election 
s a void election. 

Not an expulsion, but the declaration of the House of Commons 
on its own motion that Wilkes, by reason of having been expelled, 
was ineligible to a seat in the House of Commons—exclusion. 

In opposing the adoption of this resolution, Edmund Burke said: 

I rise to obtain some information upon this great constitutional point. 
You are going to make a disqualification of a member to sit in Parliament; 
you are going to make a disqualification c.ontrary to the unanimous opinmn 
of a Avhole county. Words have been thrown out by the noble lord importing 
that this is the law of Parliament. Is that, sir, a fact? Is this the law of 
Parliament? I wish to have that law established on the ground which estab¬ 
lishes all laws. Has it acts of Parliament? It has none. Has it records? 
Has itcustom? I have not heard a variety of precedents used.—page 231. 

Here it will be seen that of all who took any part in that debate, 
the only man who lives in history, made the specific point that the 
, House of Commons was adding, in violation of law, by its own 
action, a disqualification in Wilkes’s case. 

On the 17th of March, 1769, Wilkes having been returned again 
as a member of the House of Commons, with an overwhelming ma¬ 
jority, his election having been opposed by a Mr. Dingley, the 
House adopted a resolution which read as follows: 

s That the election of John Wilkes, who hath been by this House adjudged 
incapable of being elected, etc., is null and void. (/6id., page 53.) 

On the 15th of April he was returned again, Henry Luttrell op¬ 
posing him in the election. The Commons then adopted a reso¬ 
lution amending the return, inserting LuttrelTs name in place of 
Wilkes, and declared Luttrell elected. 

This is the history of the Wilkes case in the House of Commons. 
He was twice expelled and three times excluded. The second ex¬ 
pulsion was in part for offenses committed six or seven years before 
the Parliament from which he was expelled, sat. For one of them 
he had already been expelled, and for both of them he was then 
suffering imprisonment in the Tower. In 1782, after the House 
of Commons had recovered its liberty and been emancipated from 
the control of the ministry and the King, it adopted, on the motion 
of Wilkes himself, this resolution: 

That the said resolution ftha^of February 17,1769, declaring him incapable 
of being elected] be expunged from the journals of this House, as being sub¬ 
versive of the rights of the whole body of electors of this Kingdom. {Han¬ 
sard, volume 22, page 1U09.) 

They resolved to expunge what? I beg the House to notice 
“the resolution of February 17, 1769,” declaring him ineligible. 
Why? Because it was “ subversive of the rights of the whole body 
of electors of this Kingdom.'' 

That the significance of this resolution and its vital importance, 
as declaring the lack of power of one branch of the legislature to 
add a qualification, was fully appreciated at that time clearly 
appears from the discussion on its'adoption. While Fox conceded 
the principle, he thought the resolution unnecessary, as it would 
not have the force of law and would not change the doctrine. 
The lord-advocate agreed with Mr.. Fox and spoke principally to 
the “idea of excluding anyone from a seat in that House by a 
mere resolution of the House, and without the concurrence of the 
other branches of the legislature. Such a resolution would be 
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contrary to all law and to the very spirit of the constitution, 
according to which no one right or franchise of an individual was 
to be taken away from him but by law.” 

Wilkes was a man of almost supernatural resources in the line 
of fighting his battles against the Crown and the officers of the 
law. He had writs of error, habeas corpus petitions, and every 
artifice known to the law; but at no time during that whole pe¬ 
riod of twenty years from 1762 to 1782 did either Wilkes, or any 
champion of his, make any complaint as to the impropriety of the 
action of the House, in the two expulsions. Bear this in mind: 
The original historical distinction between “expulsion” and “ex¬ 
clusion.” This is not all. These things were not done in a corner. 
The war cry in England during that period was “ No. 45! ” “ Wilkes 
and liberty!” 

It was the battle for freedom of the press, free thought, and free 
speech. This period gave rise to all of those magnificent speci¬ 
mens of polemical literature known as the Junius Letters, I read 
what Junius said in his most famous letter, the letter to the King, 
upon this proposition of the right of the House of Commons to 
create a disqualification; I read it in connection with this same 
proposition now pending before the House upon the part of the 
majorit}^ 

He says: 

The Commons have attributed to their vote an authority equal to the act 
of the whole legislature.—/hid., 63. 

The proposition was emphasized during the whole of the period 
of “Wilkes and liberty.” 

The most serious objection urged was that “the law of the land,” which 
entitled Wilkes to his seat as the choice of the electors, had been put aside 
by a resolution of a single branch of the legislature, instead of by the joint 
action of the three. 

This is a single branch of Congress. The Senate and the Presi¬ 
dent are the other branches that must concur before this body 
can make any law of the land. 

It was thus that a warm burst of Mr. Henry Cavendish’s became a regular 
toast at political banquets: “ I do from my soul detest and abjure as uncon¬ 
stitutional and illegal tne damnable doctrine that the House of Commons can 
make, alter, suspend, or abrogate the law of the land.” This really ex¬ 
pressed the whole, as it is called, “in a nut shoW..'' —fhtzgerald's Life of Wilken, 
volume 3, page 4.5. 

There is the history of “ exclusion ” by one branch of the great 
legislature. In 1215 the barons of England, on the field of Runny- 
mede, wrested from King John, Magna Charta. In 1664 and 
1665 the liberties of the people of England were being ruthlessly 
trampled under foot by a dissolute, infamous ministry and a 
profligate king. Cromwell, at Marston Moor and Naseby, vindi¬ 
cated and preserved them. During this period, from 1762 to 1782, 
John Wilkes was paying the “ penalty in his own person ” and 
rendering great services to the cause of English liberty. 

The practical demonstration of the lack of power on the part of 
the Commons alone “to make, alter, suspend, or abrogate the law ” 
is a great milestone, along the pathway, blazed by a free people, 
in achieving civil and religious liberty. 

Such “proceedings were proved by unanswerable arguments to 
be illegal.” {May's Parliamentary Practice, tenth edition, 1893, 
page 54.) 

We freely concede to the majority the credit and the glory, if 
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credit and glory there be, of resurrecting and in invoking, in these 
closing hours of the nineteenth century, for the purpose of exclud¬ 
ing a polygamist from the House of Representatives, a doctrine 
which was declared during that eighteenth century conflict, by 
liberty-loving Englishmen, to be detestable and “damnable ” and 
“subversive of the right of the whole body of electors of the 
Kingdom.” 

We congratulate the House upon being given the opportunity 
by the majority to place itself upon record before “ the country 
and history,”asit will, if it adopts their resolution, as indorsing and 
approving a doctrine that history declares to have been an infa¬ 
mous instrument of oppression and tyranny. We can not con¬ 
sent to thus turn the time hand backward on the dial plate. Let 
the House of Representatives adopt the policy suggested by the 
majority in the light of these historical facts and principles, 

PROCEEDINGS OP FEDERAD CONVENTION. 

Let US examine the proceedings of the Federal Convention, held 
when? In 1787, only hve years after the termination of this great 
controversy in England, in which Wilkes played so important a 
part. If the gentlemen of the majority will now permit me, I 
will correct an error which they make in the report they submit 
to the House. They say, referring to the discussion in that con¬ 
vention, on page 15: 

The next day after this discussion, and when the clause respecting age, 
etc., had, in its general sense, been informally approved, a proposed section 
respecting a property qualification was discussed. Mr. Wilson said (Madison 
Papers, volume 5, page 404) that he thought “ it would be best, on the whole, 
to let the section go out; this particular power would constructively exclude 
every other power of regulating qualifications.” What did Mr. Wilson mean 
if the result of the discussion in which he participated on the preceding 
day was to “constructively exclude every other power of regulating quali¬ 
fications?” 

In view of the objections urged by Dickinson and Wilson and their opinions 
as to the construction that would result and the consequences thereof the 
conclusion seems reasonable, if not absolutely irresistible, that the change 
from the affirmative to the negative form was intentionally made, and with 
the very purpose of obviating such objections, and hence that in being nega¬ 
tively stated it was considered by the convention that the particular qualifi¬ 
cations mentioned would not be exclusive and would not render impossible 
the “disqualifying, odious, and dangerous characters ” and would not prevent 
“supplying omissions.” 

It was because Mr. Wilson objected to the report of the com¬ 
mittee of detail, that this clause was changed in the Constitution, 
they say. Let me call the attention of the majority to the fact, as 
I hold Madison's Debates in my hand, that the speeches made by 
Wilson and Dickinson in that Convention were not made on the 
report of the committee of detail, but upon a proposition which 
was to be submitted to, and reported upon, by the committee of 
detail. The discussion was on July 26. August 10 the second 
speech was made by Mr. Wilson, which the committee say was 
made one day after the discussion—an error of only fourteen'days, 
a mere trifle for the majority. 

Many more errors will be seen before I finikh this discussion. 
The proposition under discussion that was to be submitted to the 
committee of detail reads: 

That the committee of detail be instructed to receive a clause requiring 
certain qualifications of landed property and citizenship of the United States 
‘ in members of the National Legislature, and disqualifying persons having 
unsettled accounts with, or being indebted to, the United States from being 
members of the National Legislature. 

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The objection that both Mr. Dickinson and Mr. Wilson made to a 
provision as to qualifications was made at that time. It was re¬ 
ported finally by the committee of detail, and when it was re¬ 
ported by the committee of detail it read as follows: 

Every member of the House of Representatives shall bo of the age of 25 
years at least; shall have been a citizen of the United States for at least 
three years before his election, and shall l)e at the time of his election a resi¬ 
dent of the State in which he shall be chosen. 

Now, I state to the House that after the report of that commit¬ 
tee of detail, no man raised his voice in the Federal Convention to 
object to that clause in any way, and the records bear me out. 
What, then, becomes of this sug??estion, based upon an erroneous 
statement of facts, that the clause as to qualifications was changed 
from affirmative to negative to meet the objections of Mr. Wilson 
and Mr. Dickinson to this clause, in the report of the committee 
of detail, when neither of them made any objection to it in that 
reiiort? 

The whole case, of the right to add qualifications is based upon 
the fact that such qualifications as are prescribed are negatively 
expressed. The juxtaposition of the affirmative and negative 
clauses, it is said, has some significance. It does not appear that 
any of the court's, elementary writers, or lawyers, that have had 
occasion to insist upon this, have ever availed themselves of the 
debates in the Federal Convention, for the purpose of ascertaining 
the intention of the framers of the Constitution. While this pre¬ 
caution has not hitherto been observed, common fairness and a due 
regard for a thorough investigation, require that these great men, 
whose handiwork has so well withstood the assaults of time, 
should now, and upon this important question, be allowed to speak 
for themselves. An inquiry as to the origin of this clause will not 
only be interesting and instructive, but possibly determining. 
This course is stated by Cooley to be proper. {Cooley's Constitu¬ 
tional Limitations, page 80.) 

And Story, in his great work on the Constitution, makes con¬ 
stant use of the debates in the Federal Convention. 

In the report of the committee of detail giving the first draft of f 
the Constitution, August 6, 1787 {Madison Pa.j^ers, etc., volume 5, 
page 376) , the paragraph in question appears as an independent 
section—i. e., section 2, Article IV—and reads: 

Sec. 2. Every member of the House of Representatives shall be of the age 
of twenty-five years at least, shall have been a citizen of the United States i 
for at least three years before his election, and shall be at the time of his 
election a resident of the State in which he shall be chosen. 

It is significant that this section is affirmative, and is therefore i 
exclusive, as is conceded, in its character. It is important to in¬ 
quire whether the change in xihraseology was made for the pur¬ 
pose of changing its legal effect. That it was understood by the 
framers of the Constitution to be exclusive will, I think, clearly 
appear. The first consideration which indicates this is the incor- 
])oration in the same draft of the Constitution of section 2 of Ar¬ 
ticle VI, which reads: 

Sec. 2. The Legislature of the United States shall have authority to estab¬ 
lish such uniform qualifications of the members of each House with regard 
to property as to the said Legisiatui;e shall seem expedient. 

'J'he inference that the framers of this draft must have under¬ 
stood that section 2 of Article IV was exclusive, and that in order 
that the Legislature might have any power at all over qualifica¬ 
tions it was necessary to confer it by a later and specific provision, 
is necessary and obvious. The debates confirm this idea. 

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Madison opposed the proposed section 2, Article VI— 

As vesting an impi oper and dangerous power in the Legislature. The 
qualifications of elector and elected were fundamental articles in a republican 
government and ought to be fixed by the Constitution. If the Legislature 
could regulate those of either it can by degrees subvert the Constitution. 

A republic may be converted into an aristocracy or oligarchy as well by 
limiting the number capable of being elected as the number authorized to 
elect. In all cases where the representatives of the people will have a per¬ 
sonal interest distinct from that of their constituents, there was the same 
reason for being jealous of them as there was for relying upon them with 
full confidence when they had a common interest. This was one of the for¬ 
mer cases. 

Gouverneur Morris moved to strike out “with regard to prop¬ 
erty,'’ in order, as he said, “to leave the Legislature entirely at 
large ”—precisely what is now claimed without any such consti¬ 
tutional provision. This was objected to by Mr. Williamson on 
the ground that should— 

A majority of the Legislature be composed of any particular description 
of men—lawyers, for examjde. which is no improbable supposition—the fu¬ 
ture elections might be secured to their own body. 

r Mr. Madison further observed that “the British Parliament 
j possessed the power of regulating the qualifications both of the 
I electors and the elected, and the abuse they had made of it was a 
lesson worthy of our attention. They had made changes in both 
cases subservient to their own views of political or religious par- 
I ties.” Paj3c/'.s‘, etc., page 404.) 

This article was not agreed to. 

Note the significance and primal importance of Mr. Madison's 
assertion that “the qualifications of electors and elected were 
fundamental articles in a republican government and ought to be 
fixed by the Constitution,” as otherwise the Legislature might 

subvert the Constitution,'^ 

What did the House of Commons say in 1782? They said that 
the attempt on the part of the House of Commons, in violation of 
the law of the land, to add a qualification was “subversive of the 
rights of the whole body of electors of this Kingdom.” It is not 
surprising that James Madison, with a knowledge of these facts 
in Ins mind, saw that exclusive regulation of qualifications by 
the Constitution, was vital. 

His insistence upon these reasons, prevented the adoption of the 
provision that only conferred this power upon the legislature in 
one particulp, and the convention thus evidently adopted Ids 
views as to the exclusiveness of the provisions of Article IV. sec¬ 
tion 2. 

Again, when the original proposition, which resulted in Article 
I\', section 2, was under discussion prior to the draft reported by 
the committee of detail, Mr. Dickinson opposed the section alto¬ 
gether, expressly because it would be held exclusive, saying he— 

Was against any recitals of qualifications in the Constitution. It was im- 
pos.'^ible to make a complete one, and a partial one would, by implication tie 
up the hands of the I.egislature from supplying omission. ( Ibid., page 371.) 

Mr. Wilson took the same view, saying, “Besides, a partial 
enumeration of cases will disable the Legislature from disqualify¬ 
ing odious and dangerous characters.” {Ibid., page 878.) 

When this section in the dra,ft was under discussion, after 
“ three” had been stricken out and “seven ” inserted as to citizen¬ 
ship, Alexander Hamilton moved “that the section be so altered 
as to requiie meiely citizenship and inhabitancy,” and suggested 
that “the right of determining the rule of naturalization will 
then leave a discretion to the Legislature on the subject which 
will answer every purpose.” {Ibid., page 411.) 

4010 


11 


Here it is clear that, as Hamilton construed this provision, with¬ 
out this latitude as to naturalization, the Legislature had no dis¬ 
cretion or power. From the affirmative language of this pro¬ 
vision, then, as it stood in the report of the committee of detail, 
and the understanding of the framers of the Constitution, it is 
clear that it was exclusive. This section was not changed to the 
negative form by amendment, or as the result of any debate. In 
its affirmative form, with other sections that had been finally 
acted upon, and their construction and terms definitely settled, 
it was referred to a committee “to revise the style of and arrange 
the articles which had been agreed to by the House,” and this 
committee consisted, among others, of Mr. Hamilton, Mr. Gou- 
verneur Morris, and Mr. Madison. {Ibid., page 580.) 

This committee had no power to make any* change in the legal 
effect of any of the clauses submitted to them. They were sim¬ 
ply “to revise the style of and arrange.” Certainly, with his ' 
very pronounced views, Mr, Madison would not have made a 
change in Article IV, section 2, that would, in his opinion, have 
placed it within the power of the Legislature to subvert the 
Constitution!' 

Yet, when the committee reported the Constitution as it now 
stands. Article IV is rearranged so as to be included in Article I, 
and the original affirmative section 2 of Article IV appears in the 
negative form as the second independent paragraph of Article I, 
somewhat changed, it is true, but in no sense connected with or 
dependent upon the preceding paragraph, which, with an improve- ' 
ment in phraseologj^ is section 1 of Article IV of the draft. This 
deprives the argument sought to be derived from the juxtaposi¬ 
tion of all significance. {Ibid., page 559.) 

An examination of the finished work discloses the fact that the 
rearrangement and changes in phraseology by the committee were 
extensive. The object unquestionably was, to make the arrange¬ 
ment more orderly and lucid, and the language more per.spicuous 
and felicitous. To hold that in any particular, any change was in¬ 
tended to be made in the legal effect, is to impeach the integrity of ^ 
men whose characters are of the most illustrious in our history. To 
assert that they umvittingly made such changes, is a much more 
grievous assault upon their intelligence and ability. 

Moreover, we are not left to inference as to how this clause in 
its present form was interpreted by the most eminent of its 
framers. The Federalist, as is well known, was published while 
the Constitution was undergoing public discussion, and while it 
was being ratified by the States. It had been ratified by six States 
only when the numbers of the Federalist hereafter referred to 
appeared. The author of No. 52 evidently assumes that all of the 
qualifications of Representatives has been “very properly consid¬ 
ered and regulated by the convention.” 

He sa 5 ^s: 

The qualifications of the elected being less* carefully and properly de¬ 
fined by the State constitutions, and being at the same time more susceptible 1 
of uniiormity. have been very properly considei-ed and regulated by the ' 
convention. A Representative of the United States must be of the age of 25 
years; must have been seven years a citizen of the United States; must at the 
time of his election be an inhabitant of the State he is to represent, and dur¬ 
ing the time of his service must be in no office under the United State.s. 
Under these reasonable limitations, the door of this part of the Federal Gov¬ 
ernment is open to merit of every description, whether native or adoptive, 
whether young or old, and without regard to poverty or wealth or to any 
particular profession of religious faith. 

4010 


12 


If the learned author had supposed that any limitations in ad- 
d tion that might appeal to the caprice of a legislature could be 
added, he would hardly have used the term “ these reasonable lim- 
( itations.” as he evidently did, as descriptive of all of the limita- 
tiuns to be imposed. In No. 57 a general reference to this clause 
is made, which evidently proceeds upon the idea that the qualifi¬ 
cations to be required, are stated in the Constitution. It reads: 

j Who are to be the objects of popular choice? Every citizen whose merit may 
recommend him to the esteem and confidence of the country. No qualifica- 
' tion of wealth, of birth, of religious faith, or of civil professions is permitted 
to fetter the judgment or disappoint the inclination of the people. 

How could he know that, unless the Constitution settled the 
qualifications? The authorship of these two numbers is in doubt 
between Madison and Hamilton. Hamilton is conceded to be the 
' author of No. 60, and with many no authority is greater than his; 
and this, so far as bis authority goes, settles it beyond cavil. He 
says: 

The truth is that there is no method ot securing to the rich the piefer- 
ence apprehended but by prescribing qualifications of property, either for 
‘ those who may elect or be elected. But this forms no part of the power to 
be conferred upon the National Government. Its authority would be 
expressly restricted to the regulation of the times, the places, the manner of 
elections. The qualifications of the persons who may choose or be ch. (sen, 
as has been remarked upon other occasions, are defined and fixed in the Con¬ 
stitution and are unalterable by the legislature. The term “ legislature ” is 
used in the Federalist as synonymous with “Congress.” 

This unequivocal declaration was made after the negative form 
Tvas used. It is not believed that the Federalist was a determin¬ 
ing factor in securing the ratification of the Constitution, though 
it was undoubtedly published for that purpose. So far, however, 
as this clause weighed in the public mind, as this is the only con¬ 
struction that appears to have been placed upon it, it may be in¬ 
ferred that this construction was adopted by the States which 
afterwards ratified. 

Here is the crucible out of which the Constitution came; here 
tlie history that surrounded it, the conditions under which it was 
made, and the declarations of the men who framed it. 

In the light of these facts it is to be deplored, that exigencies 
arise, which are supposed to justify a construction, in direct con¬ 
flict with the intention and interpretation of those who framed 
and assisted in ratifying the Constitution. It seems clear that 
the negative form of expression has no interpretive significance, 
and as it affords no support for the proposition which involves 
the right to add qualifications, that proposition must fail with the 
erroneous construction upon which it is based. 

The gentleman from Ohio admitted that this provision reported 
by the committee on detail, being positive in form, was exclusive. 

I would like to have some metaphysical, hypercritical member 
' give this House the distinction between the expressions “at least ” 
and ‘ ‘ shall not have attained ”—“ he shall not have attained twenty- 
five years of age” and “at least twenty-five years of age.” Why 
is “at least” anymore pregnant with the idea of exclusiveness 
than “shall not have attainedshall not have attained” 
twenty-five years; in other words, must be “at least” twenty- 
five? Why are they not in essence synonymous? 

This is the whole proposition upon which these gentlemen rest 
their case, that they pan add, not only in legislation by Congress, 
but by the act of this House alone, a disqualification that is not 
4010 


mentioned in the Constitution. Let them stand here—some mem¬ 
ber with an analytical mind—and explain the distinction between 
the words “shall not have attained” and “at least.” It may be 
substantial, but I do not believe they will attempt it. 

Sound reason does not sustain this claimed right. If the con¬ 
struction contended for is admitted, it must be conceded that the 
power of adding qualifications is unlimited, as there is nothing in 
the Constitution which circumscribes it. The suggestion in 
Barker vs. People (3 Co wen, 686) that the only power to add is in 
case of a conviction of crime is purely arbitrary and gratuitous, 
and absolutely no constitutional authority is given therefor. 

The rigid confinement by the court of the right to break away 
from the Constitution, to a conviction for crime, must have been 
in the nature of expiation, a satisfying of the judicial conscience 
for the departure thus made from the Constitution. If the power 
exists, it must be unlimited; and therefore, while you can not 
take from, or narrow, the first two specified elements, you have 
unlimited power to add to them. For instance, unless a man is 
at least twenty-five years of age he is not eligible; therefore the 
Constitution does not undertake to say that a greater age may not 
be required. In fact, the necessary inference is, that only the 
minimum limit as to age has been established and the Legislature 
has unlimited power to add to that qualification, and hence may 
require all Representatives to be fifty years of age. The same 
course could be pursued with reference to the seven years’ citi¬ 
zenship clause; you can not act within the domain to which the 
Constitution has confined itself. Outside of it you can do any¬ 
thing. 

But we do not stop here. If this provision in the Constitution 
which is now under discussion is not exclusive, why is it that in 
1866, the American Congress, by reason of an experience through 
which it had recently been—why is it that the American Congress 
saw fit to propound an amendment to this Constitution, adding a 
qualification? Why observe the solemn form of submitting it"to 
the States for ratification? 

I submit this to the common sense of the House. Was that act 
of the American Congress, when ratified by the requisite number 
of States, a solemn farce, a vain ceremony, or was it necessary to 
amend the Constitution in order to exclude men who were there 
denominated as traitors? Such men had been excluded, were be¬ 
ing then excluded, but why amend the Constitution if this tre¬ 
mendous power exists, existed then, this “ general-welfare” power 
to do anything and everything under heaven that this body happens 
to want to do, when it meets a man it does not like, and sees fit to 
read a disqualification into the Constitution and exclude him? 
Why pass the fourteenth amendment? I read section 3: 

No person shall be a Senator or Representative in Congress, or elector of 
President and Vice-President, or hold any office, civil or military, under the 
United States, or under any State, who, having previously taken an oath, as 
a member of Congress, or as an officer of the United States, or as a member 
of any State legislature, or as an executive or judicial officer of any State, to 
support the Constitution of the United States, shall have engaged in insur¬ 
rection or rebellion against the same, or given aid or comfort to the enemies 
thereof. 

Was it necessary to adopt that amendment to the Constitution? 
If it was not necessary, why was it done? I say if this great 
power existed, could not this House invoke it in the case of the 
application of a traitor to be admitted within its walls, as my 
friend here suggests, without a Constitutional amendment? 

1010 


14 


The House and Senate had both exercised the power to exclude 
traitors without an amendment to the Constitution in great emer¬ 
gencies. Does not the fact that this amendment grew out of that 
crisis, demonstrate that both the House and Senate knew that 
their action in thus excluding, was unauthorized by the Constitu¬ 
tion? 

Let me suggest another consideration to my friends. Here is 
this fourteenth amendment, that limits the disqualification to per¬ 
sons who have taken an oath, only those. There were a great 
many traitors at one time in this country who had never taken an 
“oath as a member of Congress, or as an officer of the United 
States, or as a member of any State legislature, or as an executive 
or judicial officer of any State to support the Constitution of the 
United States.” What about that vast body? When there is a 
constitutional provision limiting the disqualification to those who 
had taken such “oath,” would this committee and this House hold 
that they could go further, and exclude any and every traitor, irre¬ 
spective of his having taken the oath? Why, they say they can 
now. Here is a clause in this Constitution that provides for the 
method to be adopted when a man who is disloyal stands at the 
door and knocks. , 

And what does the chairman of this committee say? What 
does the gentleman from Ohio [Mr. Tayler] say? He says the 
member from Utah, Mr. Roberts, is “disloyal.” Well, if he is 
disloyal, does he not come under the fourteenth amendment? Has 
this House, in the jilentitude of its power, or rather in the plenti- 
tude of its detei’inination, the power and the right to do anything 
that it sees fit, under any circumstances, when this constitutional 
* amendment confines the right to exclude, to a man who hasi taken 
such oath? And there is no iiretense that the gentleman from 
Utah has taken an oath, and there were thousands and thousands 
of traitors who never have taken the oath to support the Consti¬ 
tution of the United States. Let me see, has something been said 
about the sacredness of the Constitution? The minority of your 
committee stand here to say, that they take the Constitution as it 
reads, and stand for its interpretation upon reasonable, logical, 
common-sense principles. 

M’CUmOCH vs. MARYLAND. 

The case of 3IcCiUloch against Maryland (4 Wheat., 416) is, on the 
part of the gentleman from Ohio, said to have very great significance 
in construing this provision of the Constitution; and as I remem ber, 
when he made his speech to the House on the second day of the ses¬ 
sion, he said he shuddered to think what Judge Marshall would 
have said, if some one had suggested that you can not add to this 
provision of the Constitution relating to qualifications. If the gen- 
tieinan had taken a little pains, and read the opinion through, he 
would have found that Chief Justice Marshall was discussing a sec¬ 
tion of the Constitution (section 8, Articlel), which confers various 
powers upon Congress. That section concludes with this provi¬ 
sion; 

'I'o make all laws which shall be necessary and proper for carrying into exe- 
cutmn ttie foregoing powers, and all other powers vested by this Constitution 
in the Government of the United States or in anv department or officer 
thereof. 

That is the section of the Constitution that Chief Justice Mar¬ 
shall was discussing—in relation to the powers vested in Congress, 
and the right to execute those powers and carry them into effect 
4010 


15 


Purely as a dictum, matleby way of illustration, when discussing 
the powers reasonably to be implied from the concise and general 
provisions of this section, necessary, appropriate, and plainly 
adapted to effectuate its purposes, he said that— 

He would be cliarged with insanity who should contend that the legisla¬ 
ture might not superadd to the oath directed by the Constitution, such other * 
oath of office as its wisdom might suggest. 

This does not impress me as entitled to much weight in con¬ 
struing a xjrovision of the Constitution, which the court was not 
considering, and to which the doctrine *• that a government in¬ 
trusted with such ample powers, on the due execution of which 
the happiness and prosperity of the nation so vitally depends, must 
also be intrusted with ample means for their execution,” can have 
little, if any, aiiplication. 

Now, the gentleman in effect says, that the opinion of Chief 
Justice Marshall in McCullough against Maryland to be used in 
construing every provision of the Constitution, If this be true, the 
annotator of the Constitution should ha^ve re^jeated that citation 
under every section, instead of jilacing it only under those which 
related to the powers conferred on Congress by section 8, article 1. 

If the gentleman from Ohio could see the awful shade of Chief 
Justice Marshall, when he first learned that the language he had^ 
used, a dictum, by way of illustration, in resjiect to the construc¬ 
tion of section 8, was to be applied to this section of the Con¬ 
stitution under discussion, the gentleman from Ohio would shudder 
before he had time to think. [Laughter.] 

TEST OATH AS A QUAEl B’lCATION. 

It IS suggested that the existence of the clause “but no religious 
test shall ever be required as a qualification to any office or xiublic 
trust under’the United States,” which is found in Article VI of 
the Constitution, in a paragraxih relating wdiollj- to oaths, has a 
direct tendency to show that the previous paragraph in Article I, 
section 2, prescribing qualifications, was not intended to be ex¬ 
clusive, inasmuch as this paragraph in Article VI is said to add a 
qualification, which is entirelj’^ inconsistent with the idea, that the 
prior paragraph was exclusive. Reflection, howaver, leads me to 
the conclusion that this paragraph in Article VI has no x>roper 
connection with, or relation to. the paragraph in Article 1, section 
2. I think the word “ qualification ” in connection with “ religious 
test,” is used in an entirely different sense from that in which 
the word “ (lualification ” is used in Article I. section 5. It is 
clearly apxJied to and is a descrix^tion of the “religious test.” and 
must be construed in connection with that phrase, no “religious 
test * * * as a qualification.” The clause is found in a para¬ 
graph which relates solely to the oath to be administered. 

Qualification, when used in discussing the elements 'which a 
member-elect must possess in order to be entitled to enter upon 
the office, is synonymous with eligibility. This is substantially \\ 
the definition of legal lexicograx 3 hers—Bouvier, Rapalje, and An¬ 
derson. This “test oath ” came from the common law. It is 
clearly defined in Rogers against Buffalo, 123 N. Y., pages 189-190. 

Most, if not all, of the provisions of the Federal and State constitutions, 
which are of the nature of a bill of rights, were placed therein with reference 
to English history and the struggles for liberty, which such history recorded. 
Declarations, oaths, and tests as a condition for holding office had been fre¬ 
quently resorted to by the Parliament of Great Britain for the purpose of 
promoting the prosperity or one religion or insuring the downfall of another. 

4010 


16 


And, after referring to several histories— 

It can not be doubted that the facts mentioned in them were present to the 
minds of the framers of our original Constitution, from which this provisi<jn 
is eatracted. They meant that no such oaths, declarations, or tests as above 
described, nor any other of like nature, should be ordained as a condition for 
the holding of any public office. The Federal Constitution has declared that 
“no religious test shall ever be required as a qualification to any office or 
public trust under the United States.” That provision was undoubtedly in¬ 
serted for the same reasons which led to the insertion of the somewhat 
similar one of our State constitution, and now under discussion. Attorney- 
General vs. Detroit Common Council (5S Mich.., 217); Anderson's Dictionary of 
Law,'‘'Test;" "-Test act;" "-Test oath." 

The English test acts (25 Geo. II. c. 2) required persons holding 
office within six months after appointment to take the oath of alle¬ 
giance and supremacy, and subscribe a declaration against trans¬ 
substantiation, and receive the sacrament according to the usage 
of the Church of England. The qualification of a ‘'religious 
test” thus prohibited relates clearly to something “ required” to 
be done by an officer when entering upon, or after having entered 
upon the office, and not to qualifications or elements of eligibility 
* which he must possess, or disqualifications, or elements of ineligi¬ 
bility, which he must not possess, before he can enter upon the 
office. Qualification or disqualification, eligibility or ineligibility, 
is a status that either does, or does not, exist at the time of entering 
upon the office. The qualification ot a religious test has no ex¬ 
istence as a status; it is not a status, it is simply a condition to be 
performed. No member can change his status as to the elements 
of eligibility, or qualification as defined in Article I, section 2. at 
the time of entering upon the office; but if the qualification of a 
religious test existed, every member could, if his conscience were 
sufficiently elastic, comply with the test. One is predicated upon 
the past, the other upon the future. One relates to things done, 
or not done; the other to things to be done. 

After the rendition of a judgment of the House holding that a 
member-elect possesses the qualification to entitle him to take 
the oath, and only then, could the “test oath as a qualification” 
be applied. 

An examination of the constitutional history of this clause fully 
corroborates this view. The last paragraph of Article VI, with 
the exception of the clause as to the test oath and the word “ affir¬ 
mation” (which was added by amendment), is substantially 
Article XX of the first draft of the Constitution as reported by 
the committee of detail August 6. 1787. {The Madison Papers, 
containing debates on the Confederation and Constitution, volume 
5, 381; Elliot’s Debates.) 

The clause in question first appears in the proceedings August 
20, 1787, and was introduced by Mr. Pinckney as an independent 
proposition to be referred to the committee of detail, and then read: 

No religious test or qualification shall ever be annexed to any oath of office 
under the authority of the United States. {Ibid., 446.) 

That the word “ qualification ” as here used related to the oath, 
and to nothing else, is too clear for argument, and that it was not 
used in the sense in which it was used in Article I, section 5, is 
likewise clear. This conclusion is emphasized by the fact here¬ 
tofore noted, that it was at one time proposed, by an independent 
constitutional provision, to confer upon the legislature express 
authority to add one qualification. The effort failed, and it is 
hardly to be supposed that they would do indirectly by this clause, 
4010 


17 


what they had directly decided, not to do. Later, when Article XX 
was being considered, Mr. Pinckney moved as an amendment to 
the article, his original proposition in precisely the language in v 
which it now appears in the Constitution. (Ibid., 498.) 

There is nothing in the proceedings to indicate that by a change 
in the phraseology he intended any change in its meaning. The 
selection by him for amendment, of the clause as to the oath, and 
not that relating to the qualification, is in harmony with this view. . 

_ For these reasons it seems to me that the clause relating to re¬ 
ligious tests can serve no legitimate purpose in enlarging that pre¬ 
scribing the elements of eligibility. 

AUTHORITIES. 

I wish to call the attention of the House to the authorities re¬ 
lied upon by the majority in support of the right to add qualifica¬ 
tions to the Constitution. I read now from the remarks of the 
gentleman from Ohio, delivered in this House on the second day 
of the session, when he was proposing to halt the gentleman from 
Utah at the bar of the House, 

Our State courts in many instances have construed exactly similar provi¬ 
sions. 

I will read now from the report which the majority of the com¬ 
mittee make to the House: 

The courts of several of the States in construing analogous provisions 
have with practical unaniinit!j(}i<ic\a.ved. against any such narrow construe 
tion of the Constitution. 

The House was informed, and I presume in all candor, that 
there were “many instances in the courts of this country where 
they had construed similar provisions.” It dwindles down now 
to “several States” with “practical unanimity;” and as there 
are just two, that makes “several States,” and as it is a fact, ♦ 
that those two agree, we have “practical unanimity.” All of the 
cases now relied on were mentioned by the gentleman from Ohio 
in his first speech, but, I submit, with the air that they were 
simply a sample, of the great array of cases to follow. 

They rely upon Rogers against Buffalo. I want to say to the 
members oi the House that I think the gentleman from Ohio was 
inadvertently led—mark you, I do not say that he intentionally 
stated—into a stronger statement of the law than this authority 
will ju-stifju The gentleman from Ohio said, that the supreme 
court of the State of New York in the case of Rogers against 
Buffalo, in an opinion drawn by Mr. Justice Peckham, who “ now 
adorns the bench of the Supreme Court ”—and, by the way, have 
you noticed that any judge, or elementary author who, tends to 
sustain the position of my friends of the majority either adorns 
the bench, or is a distinguished jurist or an eminent man?—The 
gentleman from Ohio says Justice Peckham held— 

that a provision of the constitution of New York declaring certain quali¬ 
fications for ofBce was not exclusive and did not bar the legislature from im¬ 
posing new, reasonable, and proper qualifications. 

I am obliged to question the accuracy of that assertion. If the 
gentleman from Ohio had read the opinion of the court in Rogers 
against Buffalo with diligence enough to find in it anything but 
the obiter dicta that suited his own use, he would have discovered 
that when Justice Peckham wrote the opinion there were no pro- ^ 
visions in the constitution of New York that prescribed qualifica¬ 
tions. I read from the opinion. 

4010-2 


18 


Here is the first ])roposition: 

This last provision, preventing the formation of a civil-service board of 
commissioners from one politick party is cited as a violation of Article I, 
section 1, of our constitution, which declares that “no member of this State 
shall be disfranchised or deprived of any of the rights or privileges secured 
to any citizen thereof unless by the law of the land or judgment of his 
peers/’ {Page 181.') 

Are there any qualifications prescribed in that? 

Here is the next one: 

The provision is also claimed to be a violation of section 6, Article I, which 
declares that “no person shall be deprived of life, liberty, or property with¬ 
out due process of law. {Page 181.) 

Is there any qualification prescribed in that? 

The next proposition reads: 

Still another ground of invalidity is alleged by the appellant. He says 
that the statute conflicts with Article 13, which provides for taking of an 
oath of office by members of the legislature and all officers, executive and 
judicial, before they enter on the duties of their respective offices, which 
oath is therein set forth, and it is then stated that as a qualification “no 
other oath, declaration, or test shall be required as a qualification for any 
office of public trust ” {pp. 187,188). 

I have alread}^ shown that Judge Peckhamhas determined that 
< an oath orTest was not a qualification. It was a test and an oath. 
Is there any qualification in that? And those are all the provisions 
of the constitution of the State of New York that were being con¬ 
strued by the court in that case. 

So I submit the original suggestion by my friend from Ohio in 
regard to that case,when he says that Justice Peckham “held 
that a provision of the constitution declaring certain qualifica¬ 
tions for office was not exclusive and did not bar the legislature 
from imposing new reasonable and proper qualifications,” can 
not be sustained for a moment. 

I read a little further to show what he did hold in that case. 
Not only was there no provision in the constitution of New York 
prescribing qualifications, which were being considered by Judge 
Peckham, but Judge Peckham in that opinion several times said 
that he did not decide it on any such ground. He says: 

The appellant bases his argument upon the proposition that every citizen 
has a right, which is protected by the constitution, to be regarded as eligible 
, to hold any office, unless the constitution has itself prescribed certain quali¬ 
fications for such holding— 

The opinion discloses the fact that no such qualifications were 
prescribed in the Constitution— 

He then asserts that the statute in question violates this constitutional 
right. It is not necesary, in the view toe take of this statute, to decide upon 
the correctness of the claim as to the eligihility of the citizen to hold office as 
t made by the appellant under the provisions of the Constitution. We will 
simply, for the purpose of this discussion, assume it to be correct. {Page 182.) 

Again— 

But, in our judgment, legislation which creates a board of commissioners 
consisting of two or more persons, and which provides that not more than a 
certain proportion of the whole number of commissioners shall be taken 
from one party, does not amount to an arbitrary exclusion from office nor to 
a general regulation requiring qualifications not mentioned in the Constitution. 

In the light of these facts, what justification is there for the 
confident assertion that Mr. Justice Peckham sustains the major¬ 
ity contention? As to decided cases, they rest solely upon Ohio 
^ and Colorado instead of “our State courts in many instances.^' 

4010 


19 


In Ohio vs. Covington {S9 Ohio St., 102 ) the court were pass¬ 
ing upon the right of the defendants to hold the offices of police 
commissioner and member of the board of health for the city of 
Cincinnati. The constitution provided that— 

No person shall be elected or appointed to any office in this State unless he 
possesses the qualifications of an elector. 

The court distinctly held that— 

The defendants, as members of the board of police commissioners, * * * 
are officers for whose election and appointment no provision is made in the 
constitution of t]i.' -^tate or of the United States— ' 

And were therefore such as the legislature had, by the express 
provisions of the constitution, authority to create. When the 
legislature created the offices in question it attached to them the 
condition that each officer should be— 

A resident citizen for three years of the city in which he shall be ap- .4 
pointed, and able to read and write the English language. 

The offices in question were creatures of the statute and not of' 
the constitution. It is familiar law that whatever office the 
legislature creates it can create with such conditions, limitations, 
qualifications, and restrictions as it sees fit to impose, and this 
was all that it was necessary for the court to say in that case, in 
upholding the validity of the statute. It is true, that it did go 
further than that, further than the case required,‘and held that 
no implication arose, from the negative language of the constitu¬ 
tion, that other qualifications could not be added by the legis¬ 
lature. In so far, however, as the opinion goes beyond the re¬ 
quirements of the case, it is certainl}^ doubtful authority. It 
should be stated that this case has been fully approved in the re¬ 
cent case of Mason vs. State {58 Ohio St., 54). 

The case of Darroic vs. Peo'ple {8 Colo ., 420 ) relied on is also sub¬ 
ject to the same criticism as State vs. Covington, as the office there 
considered was that of alderman, the creature of the statute. 1 

That is all there is left of the ‘‘many instances in the courts of 
this country” which they claimed sustained, this proposition. 

ELEMENTARY AUTHORS. 

I examine briefly the elementary writers relied upon. They 
rely upon Burgess upon Political Science arid Constitutional Law. 
The gentleman from Ohio [Mr. TaylerJ says that I suggested 
that Mr. Burgess was not entitled to any consideration as an 
authority. I do not remember ever having made any reflection 
upon the distinguished gentleman who writes, what the distin¬ 
guished gentlemen of the majority suggest, is “a very ambitions 
work.” Certainly the minority views contain no such reflection. 
The majority say, it “ must be considered an authority on the sub¬ 
ject of constitutional law. ” 

I do note th© fact, that Mr. Burgess, in his work on Political 
Science and Constitutional Law, cites no authority for the very 
loose propositions that he lays down in an ex cathedra manner. 

I waste no time on Throop on Public Officers. He suggests no 
authority to sustain his text that relates to. or is in any way con¬ 
nected with, the construction of any provision in the Constitution. 
Any member ot the bar can examine the work and see whether 
or not my suggestion is correct. 

Pomeroy suggests the extraordinary proposition that Congress 
can not, but that one House can, add qualifications. He does not, 
4010 


20 


however, state it to be the law, but says he is “strongly of the 
opinion,” etc. If you will read what he says the House does under 
this power, you will be in doubt as to what he did think on the 
element of qualifications. 

Now, I wish to call attention to what Mr. Justice Miller says, 
and I think I can rely upon what Mr. Justice Miller says, because 
I find in the report of the majorit}^ this splendid and significant 
certificate of Justice Miller’s character. The majority say: “ If a 
profound constitutional authority like Justice Miller had believed, 
c'c.” Now, what did Justice Miller say? He said: 

Though it might be conceivable that Congress— 

Not the House of Representatives, not the Senate, but “ that 
Congress 

might make some conditions or limitations concerning the eligibility— 

Now we are finding out from “profound constitutional author¬ 
ity ” what qualifications mean— 

the eligibility of its members, it has not been done and the constitutional 
qualifications alone regulate that subject .—Miller on the Constitution^ page 
194. 

Mark that language! 

He was a “ profound constitutional authority,” and every law¬ 
yer in this presence recognizes it, and reveres the memory of that 
magnificent jurist. He says “ it has not been done and the con¬ 
stitutional qualifications aZo7ze regulate that subject.” I submit 
to the industry, and skill, and care, of the gentlemen on the part of 
the majority, that it might have been well for them to have ex¬ 
amined the chronology of that statement, before they cited it as an 
authority before the House, on the proposition that this act of 
1882, known as the Edmunds law, excluded the gentleman from • 
Utah. 

When was this lecture of this distinguished jurist delivered, in 
which he says “it has not been done and the constitutional quali¬ 
fications alone regulate that subject?” That lecture was delivered 
in 1889 and 1890. This statute that they now claim is a disvquali- 
fication was enacted in 1882. It can not be said that Justice Mil¬ 
ler did not know that there was anj’- such legislation, because 
the great Ramsay case (iij U. S.), which defines the status of 
polygamists or persons unlawfully cohabiting, was announced in 
1884, two years after this act was passed, and five years before 
Justice Miller said that “ conditions or limitations” had not been 
added. _ Justice Miller took part in that decision as a member of 
the United States Supreme Court. 

There is your authority. There is the judge, who says, concern¬ 
ing the elements of eligibility, “It might be conceivable that Con¬ 
gress might make some conditions and limitations,” but who also 
says: 

It has not been done, and the constitntional qualifications alone regulate 
that subject. 

An “it might be conceivable” is hardly the foundation for a 
change in the Constitution. However, if Justice Miller is an au¬ 
thority, and if he knew enough at that time to state the law as it 
was, there is nothing for our friends to stand upon in relation to 
this Edmunds Act. They can come back to their “ general-wel¬ 
fare” proposition—that is, they have found something that they 
, do not like in some man; hence ineligibility. It is one thing to¬ 
day; it may be another thing to-morrow; but they have found 
4010 


21 


what they want for this case; they now declare it, and they now 
propose to impose it. 

That is all I have to say about the authorities relied upon by the 
majority. Only two State courts and only three writers, Burgess, 
Throop, and Pomeroy—Pomeroy, in fact, does not state it, be¬ 
cause he states an entirely different proposition—only these can 
be relied upon. I leave out Cushing, as he writes on both sides. 
We present to the House, on the other hand, every case we have 
been able to find in the courts. In the case of People vs. May (S 
Mich.,59S). 0 

The court said: 

We concede to the fullest extent that it is not in the power of the judiciary 
or even the legislature to establish arbitrary exclusions from office or annex 
qualifications thereto when the constitution has not established such exclu- * 
sions nor annexed such qualifications. But it is begging the question to 
assume that the act of construing the constitution has that eifect (610). 

In Thomas vs. Owens {Jf. Maryland^ 223) the court said: 

Where a constitution defines the qualifications of an officer, it is not within 
the power of the legislature to change or superadd to it, unless the power be 
expressly or by necessary implication given to it. 

And in Page vs. Hardin {8 Ben. Mon., 661) the court said: 

We think it entirely clear that so far as residence is to be regarded as a . 
qualification for receiving or retaining office, the constitutional provision on 
the subject covers the whole ground, and is a denial of power to the legis¬ 
lature to impose greater restrictions. 

In Black vs. Trover {79 Va., 125) the court also said: 

Now, it is a well-established rule of construction, as lai^ down'by an 
em.inent writer, that when the constitution defines the qualifications for v 
office, the specification is an implied prohibition against legislative inter¬ 
ference to change or add to the qualifications thus defined. 

I call attention right here and now to the suggestion that Mr. 
Justice Story is the first man upon whom we rely, and what our 
Iriends of the majority say about Judge Story? Judge Story 
Jiaiipens in this instance to state the law fiatly. squarely, and dis¬ 
tinctly, contrary to the contention of the majority. What do they 
(qiy? “First, that it is dismissed in a very few words. ” They say, 
‘Justice Story himself disclaims explicitly in his works that he 
gave his own opinion as to what the Constitution means, but asserts 
that he undertakes merely to give the statements of others. ” Here, 
in this year of our Lord 19()0, in this debate, the profession and 
the courts are advised, that this great commentator on the Consti¬ 
tution, Justice Story, did not write a commentary upon that in¬ 
strument, but simply narrated what somebody else said or simply 
what some other man thought. He is the Boswell of the Consti¬ 
tution [laughter] and no longer an authority. 

Well, now, I submit for the consideration of my distinguished 
friend, that this is in the nature of a revelation to the courts, and 
the profession in the United States. I had occasion while I was 
investigating this question, upon an allied proposition, to examine 
the opinion of the court carefully, in Kilhourne against Thomp¬ 
son, that case to which I have already alluded as establishing the 
constitutional limitations of this House in the exercise of its power 
to commit for contempt, and I noticed that the counsel in his brief 
cited to the court twelve instances where this great, powerful 
body had, in the plenitude of its mighty power, committed for con¬ 
tempt. And I noticed that the counsel on the other side cited one 
Story, “the Boswell of the Constitution.” 

4010 


22 


I also noticed, that when the justice of the Supreme Court came 
to write his opinion, he did not even so much as allude to the 
alleged precedents of this great body; but, being neither oppressed, 
or impressed, by this new hallucination as to Mr. Story, inadvert¬ 
ently referred to him in terms of respect as an authority. [Ap¬ 
plause and laughter.] I do not imagine it is necessary for me, an 
humble member of the legal profession, to stand here to defend 
the memory of that distinguished man. May I submit for the 
consideration of the majority that long after all of us who shall 
take part in this debate, in our weak and feeble way, shall have 
been covered by the protecting mantle of oblivion, the magnifi¬ 
cent intellect of Judge Story will continue to illumine the juris¬ 
prudence of this, and other lands? [Applause. ] 

They quote what Mr. Bingham said about Mr. Story. I sub¬ 
mit it is hardly a proper attack, at the hands of men who wish to es¬ 
tablish in a disinterested manner, aiu’oposition. John A. Bingham, 
of Ohio, if 1 remember aright—a gentlepian from Ohio. [Laugh¬ 
ter. ] It seems a good many things come from Ohio. This legal 
criticism of Justice Story seems to have originated in Ohio. This 
is from a speech of John A. Bingham, of Ohio. Speaking of Mr. 
Justice Story, he says: 

Gentlemen in this connection have referred to Story. I do not propose to 
read at any great length from him. I am not unmindful of the fact that this 
lamented man, so full of learning, often crowded into his pages so much of 
the text of others with whose writings he was familiar that a doubt often 
arises as to his true and certain meaning. 

“ This lamented man,” how painful. Here seems to be the ori¬ 
gin of this proposition, in Ohio [laughter], and when it was first 
started in Ohio, the objection was that Judge Story would narrate 
what other great men had said, and you could not tell on that 
account where Judge Story undertook to say anything himself. 
The idea is now improved, and the objection is that he never 
gives his own opinion, simply narrates what other people said, 
and is therefore unquestionably, the Boswell of the Constitution. 

Let me read what Justice Story said on the provision under 
discussion, and let the House say whether in the language used he 
is undertaking to repeat what any other men have said. He was 
discussing this very provision. He says: 

\ It would seem but fair reasoning upon tixB plainest principles of interpre¬ 
tation^ that when the Constitution established certain qualifications as neces¬ 
sary for office— 

Now mark! 

j it meant to exclude all others as prerequisites. From the very nature of 
' such a provision the affirmation of these qualifications would seem to imply 
a negative of all others.—Story on the Constitution, section 625. 

Who said that? Is that the report of what somebody else said, 
of some constitutional sewing circle, or is that the sound learn¬ 
ing of Justice Story? This was the utterance of a great lawyer, 
and no man ever was a great lawyer who undertook to claiin for 
himself all knowledge and information and speak in a dogmatic, au¬ 
tocratic manner on a legal proposition. It may be that Judge Story 
had read what Madison had said; it may be he had read what 
Hamilton had said, because his significant language is in perfect 
harmony with what they did say. Attention has already been 
called to what they did say. 

Again Justice Story says: 

But as the qualification of members were thought to be less carefully de- 
* fined by the State constitutions, and more susceptible of uniformity than 
4010 


23 


those of the electors, the subject was thought proper for regulation by the 
convention. ' 

It is observable that the positive qualifications are few and simple. They 
respect only age, citizenship, and inhabitancy. (Ibid., section 6I(j.) ' 

In another part of his great work Judge Story discusses nega¬ 
tive expressions and the weight to be given them in interpreting 
the Constitution. The same Story that lays down those principles 
as to negative expressions, and bearing them in mind, makes the 
positive declarations about the specific provision of the Constitu¬ 
tion under discussion, just quoted. He declares that though neg- 
\atively stated, they are “positive qualifications.” What, then,« 
from the history of the Constitution and the opinion of this com¬ 
mentator becomes of this ignis fatuus of a negative form of 
expression? The majority, however, still insist upon it. Is not 
their position well illustrated by the distich from the reader? 

Amidst the mists 
He thrusts his fists 
Against the posts, 

And still insists 
He sees the ghosts. 

[Laughter.] 

1 wish in passing to read, for the information of the House, the 
modest declaration in the preface of Story’s works, upon which I 
suppose my distinguished friend determined, after having learned 
that John A. Bingham had ventured upon that ground, that he 
would eliminate Judge Story as a legal author. [Laughter.] 

My object will be sutficiently attained if I shall have succeeded in bringing 
before the reader the true view of its powers, maintained by its founders and 
friends and confirmed and illustrated by the actual practice of the Govern¬ 
ment. The expositions to be found in the work are less to be regarded as my 
own opinions than as those of the great minds which framed the Constitu¬ 
tion or which have been found from time to time called upon to administer ' 
it. Upon subjects of government it has always appeared to me that meta¬ 
physical refinements are out of place. ' 

I commend this closing sentence to my friends: 

Metaphysical refinements are out of place. 

The minority of your committee stand upon this provision of 
the Constitution precisely with Judge Story. They read it as it 
stands, r^lain and simple, clear and direct, as the fathers made and 
understood it, unimtjaired by metaphysical refinement, furnishing 
a constitutional bulwark to the right, for which every true patriot 
would not only undergo imprisonment, but render up life itself. 
We say that a right so precious can not rightfully be frittered , 
away by any “^general-welfare” construction of this provision of 
the Constitution. 

Cooley certainly stands next in authority to Story, and he says: 

Another rule of construction is that where the Constitution defines the 
circumstances under which a right may be exercised, or a penalty imposed, 
the specification is an implied prohibition against legislative interference, to 
add to the condition, or to extend the penalty to other cases. On this groiind 
it has been held by the supreme court of Maryland, that, where the Consti¬ 
tution defined the qualifications of an officer, it was not in the power of the . 
legislature to change or superadd to them, unless the power to do was ex- * 
pressly or by necessary implication conferred by the Constitution. {Cooley's 
Constitutional Limitations^ page 78.) 

Cushing, as against his former statement, says: 

The Constitution of the United States having prescribed the qualifications 
required of Representatives in Congress, the principal of which is inhabi¬ 
tancy within the State in which they shall be respectively chosen, leaving it 
to the States only to prescribe the time, place, and manner of holding the 
election, it is a general principle that neither Congress nor the States can 

4010 



24 


impose any additional qualifications. It has therefore been held, m the first 
place, that it is not competent for Conj?ress to prescribe any further qualm- 
i cations, or to pass any law which shall operate as such. {Cashing on Law 
and Practice of Legislative Assemblies, second edition, p. '27, sec. 75.) 

John Randolph Tucker, one of the latest writers on the Consti¬ 
tution, is explicit on this point: 

Nor can the Congress nor the House change these qualifications. To the 
latter no such power was delegated, and the assumption of it would bo dan¬ 
gerous, as invading a right which belonged to the constituent body, and not 
to the body of which the Representative of such constituency was a mem¬ 
ber— Tucker on the Constitution, 394. 

The principle that each House has the right to impose a qualification upon 
its membership which is not prescribed in the Constitution, if established, 

^ might be of great danger to the Republic. It was on this excuse that the 
French Directory procured an annulment of elections to the Council of Five 
Hundred, and thus maintained themselves in power against the will of the 
' people, who gladly accepted the despotism of Napoleon as a relief.—F'o.sfer 
on the Constitution, page 367.) 

It is a fair presumption that where the Constitution prescribed the qualifi¬ 
cations it intended to exclude all others.— Paschal's Annotated Constitution, 
second edition, 505. section 300. 

When the Constitution prescribed the qualifications for an office, the Leg¬ 
islature can not add others not therein pveacrWiQd..—McCrary on Elections, 
section 313. 

McCrary also takes the ground that statutory and constitu¬ 
tional provisions making ineligible to office any person who has 
been guilty of crime presuppose a conviction before the ineligi¬ 
bility attaches. (Ibid., page 345.) 

Paine, in his work on elections, takes the same view (pages 
104-108). 

Upon this great proposition as to whether or notit is legitimate 
upon the part of this House, by its own unaided action, to thus 
change and make uncertain that which should be certain a funda¬ 
mental law. I wish to invoke the authority—though not precisely 
in point, still significant—of the immortal Webster, the defender 
and expounder of the Constitution. 

His language is striking and bears upon the general ])ro 4 >osition 
as to the propriety of any majority of this House undertaking to 
amend, and supplement, the Constitution. He says, in discuss¬ 
ing a similar question, fundamental in our system: 

Suffrage is tbe delegation of the power of an individual to some agent. 

This being so, then follow two other great principles of the American sys¬ 
tem: 

1. The first is that the right of suffrage shall be guarded, protected, and 
secured against force and against fraud: and 

3. The second is that its exercise shall bo prescribed by previous law: its 
qualifications shall he prescribed by previous low; the time and place of its 
exercise shall be prescribed by previous law; the manner of its exercise, 
under whose supervision (alwayssworn officers of the law), is to be prescribed. 
In the exercise of political power through representatives we know nothing, 
we never have known anything, but such an exercise as should take place 
through the prescribed forms of law; when we depart from that we shall wan¬ 
der as xvidely from the American track as the pole is from the track of the sun. 

I have said that it is one principle of the American system that the people 
limit their governments, national and State. They do so; but it is another 
principle, equally true and certain, and, according to my judgment of things, 
equally important, that the people often limit themselves. They set bounds 
to their own power. They have chosen to secure the institutions ichich they 
establish against the sudden impulses of mere majorities. All our institu¬ 
tions teem with instances of this. It was their great conservative principle 
in constituting forms of government that they should secure what they had 
established against hasty changes by simple majorities. {Daniel Webster's 
Works, volume 6, page 2-2k.) 

We are not to take the will of the people from public meetings, nor from 
tumultuous assemblies by which the timid are terrified, the prudent are 
alarmed, and by which society is disturbed. These are not American modes 
of signifying the will of the people, and they never were. If anything in the 
country, not ascertained by a regular vote, by regular returns, and by regu- 
41)10 


25 


lar representation, has been established, it is an exception and not the rule, 
it is an anomaly which, 1 believe, can scarcely be found. {Ibid, page 

While the great Webster was not discussing this provision of 
the Constitution. I submit that in prophetic language he gave to 
this House a fundamental principle, wh’ch on its oath and its con¬ 
science it must not disregard in determining the rights of the 
gentleman from Utah, independent of conditions, unconstrained 
by desires or wishes, unaffected by majorities, undisturbed by 
“sudden impulses” of the people, and undeterred by influences 
outside or inside of this House. 

Upon this great question, whether this House, under the lead 
of the majority of this committee, can of its own motion declare 
a disqualification that has not heretofore existed and impose it on 
the gentleman from Utah, or whether it can be done by an act of 
Congress, we stand, and I trust we may be pardoned if I say we take 
pride in standing, with Burke, the lawyer, orator, and patriot of the 
eighteenth centuiy: with Wilson, Dickinson, Morris, Madison, 
and Hamilton, framers and interpreters of the Constitution, who 
have hitherto received, and will continue to receive, the universal 
homage and admiration of mankind for their great services in es- * 
tablishing constitutional liberty: the State courts of Michigan, 
Maryland, Kentucky, and Virginia; Webster and Story, Cooley, , 
Tucker, Foster, Paschal, McCrary, and Paine, elementary writers, 
that for learning, authority, and reputation are at least unex¬ 
celled, against the State courts of Ohio and Colorado, construing 
a constitutional provision as applied to statutory offices; Burgess, 
Throop, and Pomeroy, and an “it is conceivable” of Mr. Justice 
Miller. 

We give the House the authorities. Let it say where the weight 
of authority lies. Let the House say, when it comes to vote before 
“the country and history,” whether it will stand by the authori¬ 
ties to which I have called your attention or with the courts of 
Ohio and Colorado and the three elementary writers. Before I 
leave this branch of the Subject allow ine to repeat what Mr. 
Foster says, showing the dangers that inhere in the majority 
proposition: 

The principle that each House has the right to impose a qualification upon 
its membership which is not prescribed in the Constitution, if established, might 
be of greai danger to the Republic. It was on this excuse tha t the French Direc- f 
tory procured an annulment of elections to the Council of Five Hundred, and 
thus maintained themselves in power against the will of the people, who gladly 
accepted the despotism of Napoleon as a relief. 

LEGISLATIVE PRECEDENTS. 

The minority of your committee say that while they concede 
that weight is to be given to the precedents established in this 
House and in the Senate, they also say that unless it shall appear 
to the House, on adequate information and intelligent discussion, 
that these precedents are foumded on reason, they can not right¬ 
fully govern the action of the House in this case. Because some¬ 
one else did wrong on insufficient information, on inadequate 
debate, is no excuse for this House at this time, under these cir¬ 
cumstances, in pursuing a like wrong course. 

I have just a word to say about the Lamed case in Massachu¬ 
setts. There is no statement in the report of the majority as to 
what the provisions of the constitution of Massachusetts were. 

It w.is prior to the adoption of the Constitution of the United 
Sla'es, and in the absence of that statement the case counts for 
nothing upon either side. 

4010 


26 


ntt.es case. 

I understood the gentleman from Ohio [Mr. Tayler] to say 
that a question was raised as to the exclusion of Niles, and that a 
resolution was adopted in the Senate for the purpose of ascertaiii- 
ing whether or not he was sane or insane, as an element of eligi¬ 
bility. I beg leave to disagree with my friend, the gentleman 
from Ohio. I hold in my hand the resolution, being that of the 
majority of the committee which reported it, and what does it say? 

To inquire into the election, return, and qualification of the said John M. 
Niles— 

And what else? 

And into his capacity at this time to take the oath. 

Capacity” meant his mental capacity. It is not worth while 
for me to stand here and argue in the presence of law 3 ^ers that an 
f insane man can do no valid act. If insane he could take no valid 
oath. And after thej^ were instructed to inquire as to his “ quali¬ 
fications,” they were instructed to inquire also ‘ ‘ into his capacity: ” 
simply wKether or not mentally he was capable of taking the oath. 
“Capacity,” as thus used, had nothing whatever to do with eligi¬ 
bility or qualifications. 

THOMAS CASE. 

The Thomas case, next alluded to, I will discuss with the Ken¬ 
tucky cases of a like nature, that occurred in the House. 

STAKK CASE. 

If you have the report of the majority, you will find it on page 
24. I will call the attention of the House to a few things that the 
majority of this committee omitted when they stated this case to 
the House. 

I wish j^ou to remember as I begin the anal 5 ’sis, the square, dis¬ 
tinct, explicit statement of the gentleman from Ohio that “no 
precedent in the American Congress exists against exclusion ”— 
that is, th:\t there is no case where they have decided they did not 
have the power to exclude. That is his explicit statement in his 
speech this afternoon in the House. (Since revised, the gentleman 
probably meaning “ House” instead ot “American Congress.”) 

What was the Ben,iamin Stark case? Benjamin Stark was a 
Senator from the State of Oregon who was charged with disloy¬ 
alty. In the majority report they have quoted quite a lengthy 
sugg;estion from Mr. Trumbull, who was a member of the Com¬ 
mittee on the Judiciary. Mr. Trumbull discusses this “ general- 
welfare ” proposition in relation to qualifications. What does Mr. 
Trumbull start out with? Bear in mind that the distinguished 
gentleman from Ohio [Mr. Tayler] has just stated to this House 
that there was “ no precedent against exclusion in the American 
Congress.” Let me read in the Stark case from Mr. Trumbull. 
He says: 

A preliminary question was raised in the Senate when this case was 
referred to the committee, whether it was competent for the Senate, for any 
cause, to refuse to allow a pei'son to be sworn as a member of the Senate 
whose credentials were in proper foT-m and who possessed all the qualifica¬ 
tions as to age, citizenship, and inhabitancy prescribed by the Constitution; 
and whether the only remedy lohich the Senate had to protect itself against the 
presence of an infamous person, a convicted felon, or an avowed ‘and open 
traitor, loas not by expulsion by a tico-thirds vote after he should have been 
sworn into office. 

^ This is the precise question presented now. The precise ques¬ 
tion presented in the Stark case is presented here at this moment. 

Again: 

Many lawyers holding that when he possessed the necessary credentials 
4010 


27 


ana the qualifications prescribed in the Constitution, that notxvithstanding 
the charge of disloyalty he had the right to he sworn in and the remedy was by 
exclusion. 

Mr. Trnmbtill held the other way, but every other man on the f 
Judiciary Committee held against him. Bear in mind the state¬ 
ment of the gentleman from Ohio |Mr. Tayler] that there is “no 
precedent against exclusion.” What did the Senate do “in the 
American Congress?” I think the gentleman from Ohio ought to 
have leave to amend his remarks. What did the Senate do in this 
very case? Let me read the resolution that they finally adopted 
under circumstances where, it is suggested by the gentleman from 
Ohio, this House of Representatives might make itself “su¬ 
premely ridiculous ” before the American people. This awful 
spectacle was first presented by the Senate, or rather the prece¬ 
dent was furnished by them. Here is the resolution: 

Resolved, That Benjamin Stark, of Oregon, appointed a Senator of that 
State— 

Now, they did not put this in their report, mind you— 

appointed a Senator from that State by the governor thereof, is entitled to 
take the constitutional oath of office without prejudice to any subseqxcent pro- ♦ 
ceedings in the case. 

The majority of the committee supported it. The charges of 
disloyalty were made. Ex parte affidavits were submitted as in 
this case. Mr. Trumbull, a minority of one. raised the same ques¬ 
tions raised here to-day by the ma ioHty of this committee. I do 
not know whether he charged the Senate with being “ridiculous,” 
as has been suggested by the gentleman from Ohio [Mr. TaylerJ , 
but every other man on the J udiciary Committee supported that 
resolution, and that resolution was adopted by the Senate of the /■* 
United States—yeas 26, nays 19. 

Now, I submit, in all candor and fairness, when we are stand¬ 
ing here upon either side of these legal propositions to disclose the 
truth, what becomes of the assertion of the gentleman from Ohio 
that there is no “precedent in the American Congress against ex¬ 
clusion?” What becomes of it, in view of this case and this vote 
on the part of the Senate? I am not through with this case yet. 

Let me read the names of the men who voted in the affirmative. 
They were: 

Anthony, Browning, Carlile, Collamer, Cowan, Davis, Fessen¬ 
den, Foster, Harris, Henderson, Howe, Johnson, Kennedy, La¬ 
tham, McDougall, Nesmith, Pearce, Powell, Rice, Saulsbury, 
Sherman, Simmons, Ten Eyck, Thomson, Willey, and Wilson of 
Missouri. 

There is the vote of the Senate, under circumstances exactly 
parallel to the circumstances existing before this House, except 
that Stark was charged with actual disloyalty, not the newly « 
invented, theoretical, metaphysical, empirical, chimerical, fanciful 
“disloyalty” of the majority. 

There is a further suggestion that is made upon the Stark case 
by the majority. They say here, on page 25: 

There is absolutely no doubt whatever that if the case of disloyalty had 
been stronger, Stark would have been excluded. 

I do not say that this is not so, though I think the assertion is 
rather vigorous. I am going to state the facts to the House and • 
let the House say whether it is so. The committee say: 

There is absolutely no doubt xvhatever that if the case of disloyalty had 
been stronger. Stark would have been excluded. 

Let me read to you from the report of a committee of investi¬ 
gation returned to the Senate on April 22, he having been admit- 
4010 


28 


ted February 27 and his case referred to the committee. The com¬ 
mittee say: 

That the Senator from Oregon is disloyal to the Government of the United 
States. 

Does not that look as if it was reasonably strong? [Laughter.] 
What is the matter with that case? 

That the Senator from Oregon is disloyal to the Government of the 
United States. 

There is the precedent cited by the distinguished gentleman 
from Ohio [Mr.TAYLER] for the purpose of frightening this House 
from acting in ac<-ordance with the fundamental law of the land, 
as to which he says that there is no precedent in the American 
Congress against the power of exclusion, when'the Senate took 
precisely the course suggested here. 

Mr. TAYLER of Ohio. If the Senate thought he was disloyal, 
why did it not expel him? 

Mr. LITTLEFIELD. The case dragged along for a long while. 
I have it right here. Do not fear that I am not informed about 
the case. I have not commented on what the Senate did. I am 
giving you the record in the case. The principle involved is the 
question. John Sherman, of Ohio, was on that committee that 
found he was disloyal, and that ought to settle it. [Laughter. ] 
Now, it is true that when it came to a vote, for some reason or 
other the Senate of the United States did not vote to expel him. 

Mr. GROSVENOR. Might not the same thing occur in this 

CSS0? 

Mr. LITTLEFIELD. Well, I am ready to meet you on that 
• proposition, that you can frighten this House into voting for ex¬ 
clusion, in violation of the law, when the other course is the only 
one which can legitimately be pursued. I stand here upon the proyj- 
osition that, so far as I am concerned, the gentleman from Utah, 
Mr. Roberts, shall have what I believe under all circumstances to 
be his constitutional right. I do not care how he is situated [ap¬ 
plause] nor what is the result. The fact that you may not get votes 
enough to expel does not tend to demonstrate the existence of the 
legal right to exclude. 

V The vote in favor of expulsion did not pass in that case, and Mr. 
Sherman, who signed the report of the committee, holding that 
he was disloyal, did not even vote, either in the affirmative or in 
the negative. That indicates, perhaps, that some things might 
have occurred in connection with Mr. Stark, of Oregon, that the 
record does not disclose. I do not know anything about it. I 
give you the case exactly as it stands. I submit this in all fair¬ 
ness and candor. I do not complain of the inadequate report of 
the majority. 

These records are open to us all, and it may appear to the House 
before 1 get through with this discussion, that I have taken occa¬ 
sion to examine some of them, in order that this House might 
intelligently apprehend, upon all the facts, precisely what these 
propositions stand upon. There is no good reason why the House 
should not have all the facts. 

KENTUCKY AND THOMAS CASES. 

First, we should take into consideration the conditions that 
surrounded the House of Representatives and the Senate of the 
United States in those days of 1866, 1867, and 1868. I do not wish 
to stand here and closely criticise the action of either one of those 
bodies, for we should bear in mind that under the feeling that ex¬ 
isted throughout the land, they believed that these men who were 
4U10 


29 


seeking admission to Congress, had been engaged in open rebellion 
and were still traitors to tlie United States. We must consider 
the fact, that these cases were determined under such circum¬ 
stances. The reports of the committees and the debates show the 
intense feeling that existed. In the Thomas case they were pass¬ 
ing upon the question as to the test oath in 1862. This is what Mr. 
Dawes said in his second report in the Kentucky cases in the House, 
as appears by the majority report: 

After calling attention to the gravity of the situation he said 
that “in relation to these questions there are no precedents by , 
which it may be guided in arriving at correct conclusions.'’ In 
1867, then, it seems from Mr. Dawes, that there were no prece¬ 
dents for this action now sought to be taken in this House. It 
may be that Mr. Dawes had not looked up these precedents, al¬ 
though his ability and industry were recognized as great. 

I hope that no one will think for a moment that I have failed to 
recognize the great industry, zeal, intelligence, ability, and ca¬ 
pacity which the gentleman from Ohio has brought to the inves¬ 
tigation of these questions. We all know that he has rendered 
most valuable service. But still Mr. Dawes d’'d not examme the 
precedents, if there were any earlier that could properl}’- be relied 
on, the Thomas case occurring March 18, 1867, and the Kentucky 
case July 8, 1867. Shellaberger, in his letter, states the question 
upon which these cases turned. “ First, may a law such as that 
prescribing the test oath be constitutionally passed and enforce d 
either as to any officer or to a member of Congress?” And Mr. 
Dawes makes this suggestion: 

Now, sir, to those of us who believe that that fourteenth article is already 
a part of the Constitution, there is an expressed inhibition upon this man 
contained in that article. I do not care to take the time of the House in dis¬ 
cussing the question whether it is or not a part of the Constitution. I plant 
myself upon the Constitution without amendment. 

It is apparent that some members based their action upon the 
test oath act of 1862, and some upon section 3, of the fourteenth 
amendment. 

This great fact is to be borne in mind. It was in the trying times, 
when the Republic was reorganizing itself after a terrible and 
devastating war, that these precedents occurred. What else came 
out of that excitement under the heat and prejudice that was en¬ 
gendered there? The fourteenth amendment was placed in the Con¬ 
stitution to bar and exclude men from a seat in Congress who had 
been traitors, because they knew without the amendment they had 
no right to exclude, even a traitor. Its purpose was self-preserva- ^ 
tion. I submit at this time, in these days of peace, when there is ^ 
^6 probability under the circumstances that exist to-day, in either 
North or South—brethren everywhere—of the existence of a traitor 
within our borders, it is hardly worth while to invoke such cases 
as precedents, for the exercise of this unlimited power. No exi¬ 
gency exists, anything like that which existed under those circum¬ 
stances. [Applause.] 

I desire to call attention of the House further to what seems 
to me a very significant fact, as bearing on the proposition as to 
whether or not these cases are now entitled, in cold blood, in the 
exercise of plain, simple reason, to weight as precedents. The test- 
oath act was passed in 1862. In 1865 a statute was passed making 
it applicable to attorneys at law. Under that section the case of 
Ex jMvie Garland (4 Wall., 333) was determined. The Supreme 
Court of the United States, by a majority opinion announced in 
1866, held, in relation to this test oath that was proposed to be 
4010 


60 


imposed upon members of Congress, upon attorneys at law, and 
upon any officers of the United States, as follows: 

The exaction of the oath is the mode provided for ascertaining the parties 
upon whom the act is intended to operate, and instead;of lessening, increases 
its dangerous character. All enactments of this kind partake of the nature 
of bills of pains and penalties, and are subject to the constitutional inhibi¬ 
tion against the passage of bills of attainder, under which general designation 
they are included (page 377). 

A little thing like that is of no consequence, I apprehend. The 
Thomas and Kentucky cases were substantially based on the test- 
oath act of 1862. Ordinarily, after such a decision by the United 
States Supreme Court they would lose all force as precedents; not 
so now, however. 

These cases have never been cited hitherto, as precedents. Be¬ 
fore I call your attention to the remarks of General Logan in the 
Whittemore case, I call the attention of the House to the fact that 
in 1867 John A. Logan was a member of the House of Representa¬ 
tives, and himself, submitted one of the resolutions against swear¬ 
ing in certain members from Kentucky, making them stand back 
until their loyalty was determined. 

He made on the floor of the House afterwards, at least half a 
dozen speeches on the same question. In 1870, when this man 
Whittemore, who had been guilty of selling cadetships, re.signed 
from the House, went back to the State of South Carolina and 
was returned immediately, a gross insult to the American Con¬ 
gress, Logan, making his speech on the floor of the House insist¬ 
ing upon excluding Whittemore, said—what? 

In reference to precedents, it Is said by men whispering around that there 
is no precedent for the course that I desire the House shall take in this case. 

But if we were to copy precedents, and ask ourselves is there any prece¬ 
dent to be found anywhere for this conduct of ours, I say there is; aud the 
only precedent you can find is against Mr. Whittemore. It you will take 
the case of Wilkes in the English Parliament—he was four times, I believe, 
expelled from that Parliament. 

One resolution of exclusion in the Kentucky cases was adopted 
in 1868. 

Just think of it! Logan taking part in this debate early in 1870, 
says: 

If we were to ask ourselves, is there any precedent to bo found anywhere 
for this conduct of ours— 

He put it fairly well— 

this conduct of ours, I say there is but one precedent you can find. 

Mark that! 

The only precedent you can find is against Mr. Whittemore, if you take the 
act of Wilkes, in the British Parliament, who was twice four times expelled. 

Logan said in his speech, fresh from the cases of 1867 and 1868, 
that the Wilkes case was “ the only pi^ecedent.'' 

I submit in all soberness and seriousness, to this House that it is 
a far cry in 1900, thirty years afterwards, t< Mte as a precedent 
for the action of this House, a precedent that dohn A. Logan, him¬ 
self, did not deem worthy of citation for the action of the House 
in 1870. It must be that Logan realized, as I think everyone 
realized, that the House under those trying and exciting circum¬ 
stances had gone beyond the proper constitutional limitations of 
its power, and that a constitutional amendment was necessary in 
order to xjrotect the House under similar conditions. If the 
Thomas and Kentucky cases, by reason of their extraordinary and 
exceptional character, were not worthy to be cited by Logan, has 
anything transpired to imjirove them by age? It is inconceivable 
4010 


31 


that they were not fresh in the minds of all. If they were not au¬ 
thority then, they certainly can not be now. 

WHITTEMORE CASE. 

The case of Whitteinore, in the Forty-first Congress, is another 
legislative precedent for the right to exclude. I have examined 
that case with care, and I feel bound to say that I do not think 
it entitled to any weight as a precedent. The argument upon 
which it was based shows the action of the House to have been 
unwarranted and iU advised in excluding Whittemore. The only 
speeches made in support of the proposition were by Mr. Logan. 
He does not in any way refer to the one great legal question 
involved, as to whether Congress, to say nothing of the House, 
acting alone, had the power to add to the qualifications specified 
in the Constitution, and that question was not raised during the 
debate, although at that time (1870) several State courts—one at 
least—had discussed it. People vs. Barker having been decided in 
1824. 

The House had apparently never heard that there was such a 
question. The onlj^ i)rovision of the Constitution that could pos¬ 
sibly justify the action of the House, that constituting the House 
the judge of the “ election returns and qualifications of its own 
members,” was not referred to directly or indirectly, and if the 
debate is the criterion, the House acted without any reference to 
it whatever. The clause stating the qualification was incidentally 
referred to once. Indeed, they apparently acted upon an entirely 
different provision, that does not relate to exclusion or determin¬ 
ing eligibility or qualifications, and Mr. Logan distinctly based 
his case upon it when he says: 

I base my opinion, first, npon the Constitution of the United States, which 
authorizes Congress to prescribe rules and regulations for the government 
of their members, and provides tiiat by a two-thirds vote either House maj' 
expel any one of its members without prescribing the offenses for which 
either House may expel. 

He then proceeded to make this gratuitous and unwarranted 
assumption > 

This being the theory with which I start out. I then assume that where 
the House of Representatives has power to expel for au offense against its 
rules, or a violation of any law of the land, it has the same power to exclude 
a person from its body. 

Without giving any attention to the legal distinctions involved, 
or even referring to the constitutional right of passing upon quali¬ 
fications, or adverting to the fact that exclusion is the act of a 
majority and expulsion of two-thirds, he begs the whole question 
and assumes their identity. He quotes a statute which makes a 
disqualification to hold office absolutely dependent upon a convic¬ 
tion, and then assumes it disqualified Whittemore, although there 
had been no conviction. He admits there was no Congressional 
X^recedent for the action which he proposed. He cites the Wilkes 
case in the English Parliament as a precedent, when, as he states 
it, that case was directly in point against him. Wilkes, he says, 
was elected four successive times to the same Parliament, three 
tunes without opposition and the fourth time against an opi^osing 
candidate. Three times he was expelled. The fourth time his 
opponent was seated. Neither time, according to his statement, 
was Wilkes excluded. 

Just how that case can be an authority for excluding as against 
expelling Whittemore we can not see. These considerations (and 
many more could be suggested), in view of the fact that the 
House, under Mr. Logan’s lead, absolutely refused to allow any 
4010 


32 


committee to examine, for the information of the House, the legal 
questions involved or to have the cases referred to any committee— 
though such a course was desired by such men as Poland of V^er- 
mont, Farnsworth of Illinois, and Schenck and Garfield of Ohio— 
and would not allow Schenck and Garfield to be heard on the law 
for even ten minutes each, deprive this case, in my opinion, of all 
weight as a precedent. 

CANNON CASE. 

As to that, it is only necessary to sa}^ that Cannon was a Dele¬ 
gate from the Territory of Utah. He was the creature of Con¬ 
gress and was not a constitutional member of this House. He 
was subject to its control, and this House undoubtedly could have 
fixed provisions as to his admission if it saw fit when they created 
the office. 

It could deal with him as it saw fit, and it dealt with him in all 
sorts of ways, and all sorts of arguments were used. That is 
practically the history of the Cannon case. It is in no sense a 
precedent for action in case of a member of Congress. We submit 
that all these precedents appear to have been ill advised, ill con¬ 
sidered, unusual, and are entitled to no controlling weight. The 
Stark case sustains the minority. These are the only precedents. 
What is there so inviolable about a precedent, that should lead 
this House, in violation of the law, to slavishly follow it? I do not 
understand that the continuous repetition of a wrongful or un¬ 
lawful act, has ever by prescription, ripened into a rightful act. 

I remember very well—and I have occasion to remember it, be¬ 
cause I reflect upon it with great pride—I remember very well 
when the man of iron stood in the chair in this House, and in re¬ 
sponse to the order of the Republican House established a ruling, 
overturning the precedents of a century. He took the House of 
Representatives, an obstructive body, and made it an instrument to 
register the people’s will. That ruling was not made in violation 
of the law, it was not made on the basis of public policy, or because 
expediency required the Constitution to be wrenched, nor under the 
“ general-welfare” power, but it was made in accordance w’ith 
the law’ of the land. 

A decision in 62 New Hampshire, in 1882, had declared it, and 
since the ruling, the Supreme Court of the United States has sus¬ 
tained it. Unless precedents are based on sound legal reason they 
ought not to influence or control the action of this House. 

MEMBERSHIP IN CONGRESS NOT AN “• OFFICE UNDER THE UNITED STATES.” 

We submit with great confidence that there can be no question 
that this act of 1882 does not now, and never did, apply to the 
gentleman from Utah. Why? This statute we submit must be 
construed in connection with the conditions and circumstances 
under which it was enacted. 

What were the conditions under which it was enacted? When 
it v/as enacted Utah was a Territory. To what did the act ap¬ 
ply? 

No polygamist, bigamist, or any person cohabiting with more than one 
woman =t= * * in any Territory or other place over which the United 
States has exclusive jurisdiction. 

It was then the Territory of Utah. Did that act, when it was 
passed, affect the eligibility of any member of Congress? Did it 
not affect the eligibility of a Delegate to Congress from a Terri¬ 
tory, and no one else? Did it affect the eligibility of a polygamist 
or a person unlawfully cohabiting in Iowa, or in Maine, or New 
York? Was it not confined in its operation, when it was passed 
4010 


33 


to Utah, and other Territories, of the United States? No man, a 
resident of the Territory of Utah, could become a member of Con¬ 
gress from elsewhere, and I submit that when that act was passed, 
the circumstances that surrounded it, demonstrate that it did not, 
and could not, apply to a member of Congress, and that it could 
only apply to a Territorial Delegate. 

But eighteen years have now passed, and where is the act of 
the American Congress that has changed the enactment so as to 
make it apply to a member of Congress? It could not then apply 
to a member of Congress. How can it now? Unless a member 
of the House holds an office “under the United States,” within 
the meaning of the Edmunds Act, there is no disqualification. 

As to the nature of their offices, whether “under the United 
States ” or otherwise, members of the House and Senate are evi¬ 
dently the same. The words “office” and “ offices ” occur in the 
Constitution and amendments twenty-three times, and the words 
“officer” and “officers” fifteen times, and, with the exception of 
perhaps two instances, these terms are never used, either directly 
or indirectly, as relating to, or in connection with, a Representa¬ 
tive or Senator. 

One possible exception referred to is found in Article I, section 
3, and reads: 

Jiidp:meiit in cases of impeachment shall not extend further than to re¬ 
moval from office, and disqiralificatioft to hold and enjoy any office of honor, 
trust, or profit under the United States. 

The term “office” in the first clause, as to “removal from 
office,” clearly does not relate to a member of either House, as it 
will be seen that the provisions as to impeachment do not apply 
to them. It would seem that a civil officer guilty of conduct that 
would justify impeachment ought not to be eligible to a seat in 
Congress, though unless the clause “office of honor, trust, or 
profit under the United States” be held to include a member, he 
could not be disqualified thereby. Still, if a member is not the 
subject of impeachment, there is perhaps as much reason, in ex¬ 
empting him from the disqualifications of impeachment. 

The other possible exception is in Article I, section 9, paragraph 8: 

No title of nobility shall be granted by the United States; and no person 
holding any office of profit or trust under them shall, without the consent of 
Congress, accept of any present, emolument, office, or title of any kind what¬ 
ever from any king, prince, or foreign state. 

Standing alone, we might understand the paragraph as broad 
enough and comprehensive enough to include members of Con¬ 
gress: but taken with the other provisions of the Constitution— 
and they are numerous—wherein the like terms do not embrace 
or apply to Senators or Representatives in Congress, what support 
can this paragraph possibly afford to those who invoke it as an 
authority for adding anything whatever, to the prescribed qualifi¬ 
cations of a Representative. 

The clause in Article I, section 6, provides: 

And no person holding any office under the United States shall be a mem¬ 
ber of either House during his continuance in office. 

Here it is very clear that “ any office under the United States ” 
can not include a member, as otherwise it would be equivalent to 
a provision that no member of either House shall be a member of 
either House during his continuance in office—an absurdity. A 
clause in Article II, section 1, provides: 

But no Senator or Representative, or person holding an office of trust or 
profit under the United States, shall be appointed an elector. 

4010-3 


34 


Here the terms “Senator or Representative” and “ person hold¬ 
ing an office of trust or profit under the United States” are used 
in the alternative, or in contradistinction from each other. If 
they were one and the same, their separate enumeration was un¬ 
necessary. If identical, there would be no occasion to particu¬ 
larize “ Senator or Representative.” 

If identical, the adjective “other” should have been used, so 
that the clause should read, “or person holding any other office 
of trust or profit under the United States,” etc. 

These observations apply to the following provisions: 

The Senators and Representatives before mentioned, and the members of 
t the several State legislatures, and all executive and judicial officers, both of 
the United States and of the several States, shall be bound by oath or affirma¬ 
tion, etc. {^Constitution^ Art. VI.) 

No person shall be a Senator or Representative in Congress, or elector of 
\ President and Vice-President, or hold any office, civil or military, under the 
United States, or under any State, who having previously taken an oath, etc. 
(XIV Amendment, sec, 3.) 

Article II, section 4—“The President, Vice-President, and all 
civil officers of the United States shall be removed from office on 
impeachment for and conviction of treason, bribery, or other high 
crimes and misdemeanors ”—has been construed by the only tri¬ 
bunal therefor known to the Constitution, the Senate sitting as a 
court of impeachment, which held that a Senator was not a “ civil 
officer,” and therefore was not liable to impeachment. It was the 
case of William Blount, a Senator, who was impeached before the 
bar of the Senate by the House of Representatives. In his plea he 
claimed that as a member of the Senate he was not one of the 
“ civil officers of the United States,” and on the 11th of February, 
1797, the Senate announced its conclusion, as follows: 

The court is of the opinion that the matter alleged in the plea of the de- 
> fendant is sufficient in law to show that this court ought not to hold jurisdic¬ 
tion of the said impeachment, and that said impeachment is dismissed. 
{Annals of Congress., volume S, page 2319.) 

Story concurs in this view. {Story on the Constitution, section 
792.) 

Who can be said to hold office “ under the United States” was 
practically decided in United States vs. Germaine (99 U. S., 508- 
512), where the court said: 

The Constitution, for purposes of appointment, very clearly divides all 
its officeis into two classes. The primary class requires a nomination by 
tne President and confirmation by the Senate. But foreseeing that when 
officers become numerous and sudden removals necessary this mode might 
be inconvenient, it was provided that, in I’egard to officers inferior to those 
specially mentioned. Congress might by law vest their appointments in the 
President alone, in the courts of law, or in the heads of departments. That 
all persons who can be said to hold an office under the Government about to 
be established under the Constitution were intended to be included within 
one or the other of these modes of appointment there can be but little 
doubt. 

In United States vs. Mouat (124 U. S., 303-308) the Germaine 
case is cited and approved, the court saying: 

In that case, it was distinctly pointed out that, under the Constitution of 
the United States, all its officers were appointed by the President, by and 
with the consent of the Senate, or by a court of law, or the head of a Depart¬ 
ment. 

The same principle is affirmed in United States vs. Hendee (124 
U. S., 309-315). 

If. then, “all its officers,” “under the Constitution,” are ap¬ 
pointed in the manner above indicated, clearly a member of either 
House does not hold an office “ under the United States,” and the 
Edmunds Act does not apply. 

4010 ‘ 


35 


The fact, if it be a fact, that there are statutes in which the 
expression “office under the United States” is disclosed by the 
context to include a member of Congress, when there is no such 
context in this act, and when the existing conditions expressly 
negative the idea, is of no probative force in construing this act 
of 1882. I submit upon this branch of the case that there is no 
question but that this act has no application whatever to the 
member from Utah, because an “office under the United States” 
does not include a member of Congress. 

THE EDMUNDS ACT. 

The committee quote section 8 of the Edmunds act and then say: 

Reading that act as applicable to this case, eliminating the irrelevant por¬ 
tions, it appears as follows— 

And let us see how they eliminate it— 

No polygamist shall be entitled to hold any ofidce or place of public trust, 
honor, or emolument under the United States. 

I submit to this House whether that is the act: 

No polygamist shall be entitled to hold any office or place of public trust, 
honor, or emolument under the United States. 

Where? According to the statement of the committee, when 
they have eliminated all they desire—(and I am prepared to con¬ 
cede that if this committee can amend the Constitution, the fun¬ 
damental law of the land, they have equal authority and power 
at least, to amend the statutes of the United States without the 
assistance of Congress) — [laughter] where, after their elimina¬ 
tion, does the act apply? Anywhere, everywhere, without limit. 
The only place where this act can operate—“any Territory or 
other place over which the United States has exclusive jurisdic¬ 
tion”—is “irrelevant,” in the opinion of the committee. What 
does the act say? 

No polygamist, bigamist, or any person cohabiting with more than one 
woman * * * jn any Territory or other place over which the United 
States has exclusive juidsdiction. 

Let us have an analysis of this law as it is, not as some of us 
wish it was. This will show that no ineligibility can be predicated 
upon section 8 of the Edmunds Act, upon the facts, as they must 
be conceded to exist. A brief statement of the history of the 
legislation involved may be useful. 

The Edmunds Act became a law March 22, 1882. Section 1 
amended section 5352 of the Revised Statutes of the United States 
and defined and prohibited polygamy. Section 3 defined and pro¬ 
hibited unlawful cohabitation, and reads as follows: 

Sec. 3. That if any male person, in a Territory or other place over which 
the United States have exclusive iurisdiction, hereafter cohabits with more 
than one woman, he shall be guilty of a misdemeanor, and on C9nviction 
thereof shall be punished by a fine of not more than $300, or by imprisonment 
for not more than six months, or by both said punishments, in the discretion 
of the court. 

Section 8, relating to eligibility to hold office, reads: 

Sec. 8. That no polygamist, bigamist, or any person cohabiting with more 
than one woman, and no woman cohabiting with any of the persons described 
as aforesaid in this section, in any Territory or other place over which the 
United States have exclusive jurisdiction, shall be entitled to vote at any 
election held in any such Territory or other place, or be eligible for election 
or appointment to or be entitled to hold any office or place of public trust, 
honor, or emolument in, under, or for any such Territory or place, or under 
the United States. 

The Edmunds-Tucker Act, which became a law March 3, 1887, 
supplemented the Edmunds law, imposed penalties for various 
kindred offenses, dissolved the corporation known as the Church 
4010 


36 


of Jesus Christ of Latter-Day Saints, and contained,'among other 
things, various provisions as to dower and the law of descent. 
With reference to eligibility to office it contained, among others, 
this paragraph, in the last part of section 24: 

No person who shall have been convicted of any crime under this act, or 
under the act of Congress aforesaid, approved March ^2,1883, or who shall be 
a polygamist, or who shall associate or cohabit polygamously with persons 
of the other sex, shall be entitled to vote in any election in said Territory, or 
be capable of jury service, or hold any office or emolument in said Territory, 

It will be noticed that this act applied only to “office or emolu¬ 
ment in said Territory.” It did not go as far as the similar pro¬ 
vision in the Edmunds Act and apply to “any office under the 

TJtII fiPii 

February 4, 1892, Chapter VII of the laws of the Territory of 
Utah was enacted. Section 1 defined and punished polygamy 
substantially as did section 1 of the Edmunds Act. Section 2, re¬ 
lating to cohabitation, in all material parts is an exact transcript 
of section 3 of the Edmunds Act. There is no provision whatever 
in this act relating to ineligibility to office, by reason of any of 
these offenses. {Laws of Utah, 1892, page 5.) 

The enabling act, authorizing the people of Utah to form a con¬ 
stitution and State government, and to be admitted into the Union, 
became a law July 16, 1894. This act required the convention to 
provide by ordinance irrevocable without the consent of the 
United States and the people of the State— 

First. That perfect toleration of religious sentiment shall be secured, and 
that no inhabitant of said State shall ever be molested in person or property 
on account of his or her mode of I’eligious worship: Provided, That polyga¬ 
mous or plural marriages are forever prohibited. 

The constitiition of Utah was adopted by the convention May 8, 

1895, by the people November 5,1895, and the proclamation of the 
President of the United States announcing the result of the elec¬ 
tion and admitting the State into the Union was issued January 4, 

1896. * Article III, ordinance of the constitution, contained the 
provision as to religious liberty and polygamous or plural mar¬ 
riages in the exact language of the enabling act. {R. S. Utah, 
1898, page 40.) 

Article XXIV, section 2, of the constitution reads as follows: 

Sec. 3. All laws of the Territory of Utah now in force not repugnant to 
this constitution shall remain in force until they expire by their own limita¬ 
tion or are altered or repealed by the legislature. The act of the governor 
and the legislative assembly of the Territory of Utah entitled “An act to 
punish polygamy and other kindred offenses,” approved February 4, 1893, in 
so far as the same defines and imposes penalties for polygamy, is hereby 
declared to be in force in the State of Utah. (R. S. Utah, 1S9S, page 67.) 

This did not give the State of Utah any law, making persons in¬ 
eligible to any office, by reason of polygamy or cohabitation, as no 
such provisions existed in the act of 1892, chapter 24, or in any of 
the “laws of the Territory of Utah.” 

Sections 4208 to 4216, inclusive, of the Revised Statutes of Utah 
{R. S. Utah. 1898, page 899) are substantially the act of 1892. Sec¬ 
tion 2 of the act of 1892 and section 4209 of the Revised Statutes, 
relating to unlawful cohabitation, are precisely alike. This statute 
has not been changed. 

The laws of the State of Utah, then, do not now impose, and 
never have imposed, any disqualification for holding office, by rea¬ 
son of polygamy or unlawful cohabitation. Mr. Roberts was a 
resident of the Territory of Utah, and since its organization as a 
State has been a resident of the Stat^ of Utah. Under these cir¬ 
cumstances we do not think that the disqualifications imposed by 
4010 


37 


the Edmunds Act have had any operation as to him since the or 
ganization of the State of Utah. It is settled by an unbroken line 
of decisions that all Territorial Congressional legislation, is super¬ 
seded by the adoption of a State constitution, and the organization 
of a State. 

In discussing the effect of the adoption of the constitution of 
Louisiana upon the laws of Congress, the court, in Permoli vs. 
First Municipality (3 How., 610), said; 

So far as they conferred political rights, and secured civil and religious lib¬ 
erties (which are political rights), the laws of Congress were all superseded 
by the State constitution; nor is any part of them in force unless they were 
adopted by the constitution of Louisiana, as the laws of the State. 

The case of Strader et al. vs. Graham {10 How., 94) determines 
the same question, and says; 

The argument assumes that the six articles which that ordinance declares 
to be perpetual are still in force in the States since formed within the Terri¬ 
tory, and admitted into the Union. If this proposition could be maintained, it 
would not alter the question. For the regulation of Congress, under the old 
Confederation or the present Constitution, for the government of a particular 
territory, could have no force beyond its limits. It certainly could not re¬ 
strict the power of the States within their respective territories; nor in any 
manner interfere with their laws and institutions; nor give this court any 
control over them. The ordinance in question, if still in force, could have no 
more operation than the laws of Ohio in the State of Kentucky, and could not 
influence the decision upon the rights of the master or the slaves in the State, 
nor give this court jurisdiction upon the subject. 

But it has been settled by judicial decision m this court, that this ordinance 
is not in force. 

The case of Permoli vs. The First Municipality (3 How., 589), depended upon 
the same principles with the case before us. 

The same doctrine is held in Pollard et al. vs. Hagan {$ Plow., 

212 ). 

It is approved by all of the court, from Chief Justice Taney to 
Judge Curtis, in IJrcd Scott vs. Sandford {19 How., 490). 

It is approved in Woodman vs. Kilbourne Manufacturing Com¬ 
pany (1 Abb. U.S., 162), opinion by Justice Miller, of the United 
States Supreme Court. Columbus Insurance Company vs. Cur- 
tenius {6 McLean, 212). 

This precise question, in the application to the State of Utah of 
a law of Congress which was not continued in force by any legis¬ 
lation, has been determined in Moore vs. United States {85 Fed. 
Rep., 468). 

The court were determining whether a law of Congress against 
unlawful combinations was in force in Utah, and held; 

By its terms, the provision of the statute under which this indictment was 
found applies only to the Territories of the United States, and while it may 
yet be in full force within the Territories, it is clear that no prosecution 
could be maintained under it for entering into a combination or conspiracy 
in restraint of trade in Utah after the date of her admission as a State. 
* * * When Utah became one of the States of the Union, this statute ceased 
to be in force within its boundaries, unless by appropriate legislation it was 
continued in force for the purpose of prosecuting violations thereof com¬ 
mitted during the existence of a Territorial government. * * * The act of 
July 2 was not repealed by the enabling act, for it yet applies to the Territo¬ 
ries of the United States. It ceased to be in force in Utah only because it 
was superseded by the constitution upon the admission of the State. 

'We have seen that there was no legislation of any kind con¬ 
tinuing in force section 8 of the Edmunds Act, relating to dis¬ 
qualification. It is to be observed that this section does not 
undertake by its terms to operate within the limits of any State. 
It is expressly confined in its operation, by its terms, to “any 
Territory or other place over which the United States have ex¬ 
clusive jurisdiction.” The meaning of the terms “polygamist” or 
“person cohabiting,” with reference to the restriction as to vot- 
4010 


38 


ing, has been fully settled by the United States Supreme Court in 
Murphy vs. Ramsey {lU U. S., 39; 29 L. C. R, 47). 

This was an action for damages sustained by reason of being de¬ 
prived, under this section, of the right to vote in the Territory of 
Utah; and among other things the court held: 

It is not, therefore, because the person has committed the offense of 
bigamy or polygamy at some previous time, in violation of some existing 
statute, and as an additional punishment for its commission, that he is dis¬ 
franchised by the act of March 22,1882, nor because he is guilty of the offense 
as defined and punished by the terms of the act. * * * 

The requirements of the eighth section of the act, in reference to a woman 
claiming the right to vote, are that she does not, at the time she offers to 
registei', cohabit with a polygamist, bigamist, or person cohabiting with 
more than one woman. * * * Upon this construction the statute is not 
open to the objection that it is an ex post facto law. It does not seek in this 
section and by the penalty of disfranchisement to operate as a punishment 
upon any offense at all. * * * 

The disfranchisement operates upon the existing state and condition of 
the person, and not upon a past offense. It is therefore not retrospective. 
He alone is deprived of his vote who, when he offers to register, is then in the 
state and condition of a bigamist or a polygamist, or is then actually cohab¬ 
iting with more than one woman. * * * So that, in respect to those dis¬ 

qualifications of a voter under the act of March 22,1882, the objection is not 
well taken that represents the inquiry into the fact by the ofllcers of regis¬ 
tration as an unlawful mode of pro.secution for crime. 

In respect to the fact of actual cohabitation with more than one woman, 
the objection is e^ally groundless, for the inquiry into the fact, so far as 
the registration officers are authorized to make it, or the judges of election, 
on challenge of the right of the voter, if registered, are required to determine 
it, is not, in view of its character as a crime, nor for the purpose of punish¬ 
ment, but for the sole purpose of determining, as in case of every other con¬ 
dition attached to the right of suffrage, the qualification of one who alleges 
his right to vote. It is precisely similar to an inquiry into the fact of na¬ 
tivity, of age, or of any other status necessary by law as a condition of the 
elective franchise. 

The principles which aijply to eligibility as a voter, must apply 
to eligibility to office, as they are in the same section and the same 
language applies to each, and in order to be affected by the dis¬ 
qualification prescribed by this section, a person must be a polyg¬ 
amist or unlawfully cohabiting within the meaning of the sec¬ 
tion, “ at the time ” of entering upon the office. It is not enough 
to show that at some former period Mr. Roberts was a poh’^gamist 
or unlawfully cohabiting, as the disfranchisement does not 
operate “ upon a past offense.” It would have been entirely com¬ 
petent for Roberts to have taken himself from under the operation 
of this section while Utah was still a Territory by simply ceasing 
to be a polygamist or cohabiting, or by moving into a State, as 
the “disfranchisement” operates upon “the existing state and 
condition of the person” only. In other words, the offense must 
be continuous. The offense, and the disqualification, are cotermi¬ 
nous. 

There is a further legal proposition, too well settled to require 
the citation of authority, and that is, no statute can operate, either 
directly or indirectly, extra-territorially. The statute in question 
does not undertake to. 

The offense of polygamy, and unlawfully cohabiting, is localized 
by the statute. The provision is not general. No polygamist or 
person thus cohabiting “anywhere, without any restriction as to 
place,” is not the language. On the other hand, the prohibition is 
confined to a specified locality. No polygamist or any person, thus 
cohabiting—where? “ In any Territory or other place over which 
the United States have exclusive jurisdiction. ” The United States 
had no power to make the prohibition apply to any other place, 
and did not attempt it. The offense, and the place'defined, must 
coexist. He must be a polygamist, or person unlawfully cohabit- 
4010 


39 


ing, in “any Territory,”or the statute does not apply. The statute 
applies only to residents of the Territory. 

In the light of these propositions let us analyze the case as it is. 

Mr. Roberts presents himself as a member-elect of this House. 
It is objected that he is disqualilied, under this section, as a po¬ 
lygamist or person unlawfully cohabiting. The disqualification 
must exist, at the time of his becoming a member. But since 
January, 1896, he has resided in the State of Utah, and this stat¬ 
ute has not since then, and does not now, operate upon him. It 
can not, therefore, now disqualify him. The conditions of offense, 
and place, required by the statute to coexist, do not coexist in his 
case, and therefore the statute does not apply. In other words, 
it is said he is ineligible. Why? Because there is a statute of 
the United States which says that no polygamist or person un¬ 
lawfully cohabiting, in “any Territory” is eligible, and he is a 
polygamist or person thus cohabiting. It is a complete answer to 
saj’, “ While I am a polygamist, I am not such in ‘any Territory.’ ” 

While the penal provisions of the Edmunds Act are in full force 
in “any Territory,” it would not for a moment be contended that 
Mr. Roberts would be liable to prosecution thereunder since Janu¬ 
ary, 1896. Why ? Simply because since that time he has com¬ 
mitted no crime, within “any Territory,” as all of his acts have 
been in the State of Utah. A fortiori the disqualifying provisions 
do not apply to him, as they do not even “operate as a punish¬ 
ment upon any offense at all. ” The moment Utah became a State, 
he. living in Utah, became a resident of the State, and one of the 
indispensable elements of the Condition to which the disqualifica¬ 
tion attaches—residence within “any Territory”—ceased to exist, 
and the disqualification ceased to apply. The offense of polygamy 
or unlawful cohabitation in “any Territory” and the disqualifi¬ 
cation were no longer coterminous. He is now doing no act in 
“ any Territory ” to which the disqualification applies, and there¬ 
fore it does not exist. 

It is true that while Utah was a Territory Roberts was unlaw¬ 
fully cohabiting, and the disqualification existed, and his status 
was then that of ineligibility, and therefore it may be suggested 
it continues. But this would make the disqualification the result 
of a past offense, and the law says that it “operates upon the ex¬ 
isting state and condition of the person, and not upon a past of¬ 
fense. ” It does not ‘ ‘ operate as a punishment ” at all, all of which 
it clearly would'do, if the supposition were correct. 

If the disqualification attaches to Roberts by reason of acts com¬ 
mitted in Utah, the State, then the act would be operating extra- 
territorially, outside of “any Territory ” to which by its specific 
terms it is expressly confined. The fact that Roberts still resides 
in the same place where he resided in 1895, though Utah is now a 
State, but then, was a Territory to which the law applied, undoubt¬ 
edly is the cause of some confusion of thought. It is clear that 
his legal rights are precisely the same as though, since 1896 he had 
been residing in Maine and had been elected to Congress from that 
State. It would not be contended that this act could have any 
application to him in such case, to affect his present status, as it 
never operated there. No more has it in Utah since January, 1896. 

To be sure, it is suggested that he may be eligible while in Utah 
by reason of the fact that this statute does not operate upon him 
there; but that the moment he gets into the District of Columbia, 
this being under the exclusive jurisdiction of the United States, 
he is ineligible, which involves the further interesting proposition 
that the moment he returns to the State of Utah, he is also 

4010 


40 


eligible again. Now you see it; now you don’t. [Laughter.] 
Such a suggestion is not worthy of serious attention 

It seeme to me beyond question that this act does not now apply 
to Mr. Roberts. Then there is no law having any application to 
this case by which the attempt is made to add anything to the 
constitutional qualifications. This House, by its independent ac¬ 
tion, can not make law for any purpose. The adding by this 
House, acting alone, of a qualification not established by law 
would not only be a violation, of both the Constitution, and the 
law, but it would establish a most dangerous precedent, which 
could hardly fail to “ return to plague the inventor.” You might 
feel that the grave moral and social aspects of this case allowed 
you to— 

Wrest once the law to yoiir authority 
To-do a great right, do a little wrong. 

But what warrant have you, when the barriers of the Constitu¬ 
tion are once broken down, that there may not come after us a 
House with other standards of morality and propriety, which will 
create other qualifications with no rightful foundations, that, in 
the heat and unreason of partisan contest—since there will be no 
definite standard by which to determine the existence of qualifi¬ 
cations—will add anything that may be necessary to accomplish 
the desired result? Exigency will determine the sufficiency. It 
would no longer be a government of laws, but of men. To thus 
depart from the Constitution and substitute force for law is to 
embark upon a trackless sea without chart or compass, with 
almost a certainty of direful shipwreck. 

THE UNDERSTANDING. 

The ingenuity of the majority is not yet exhausted. They say; 

His election as a Representative is an explicit and offensive violation of 
the understanding by which Utah was admitted as a State. 

I would like to inquire of the majority where they find the au¬ 
thority for the proposition that the United States Government 
can go into the question of an ‘ ‘ understanding ” that existed before 
a State was admitted into this Union, and then, having found it, 
exercise this domiciliary, supervisory, disciplinary power over the 
State. Where does it exist? What is it indicated by? Is it oral? 
They do not undertake to suggest it is in the enabling act, although 
they refer to it. 

But is it an oral “ understanding ” that exists between the States 
by reason of this “general welfare ” power? I assume that they 
invoke it under this “general welfare ” proposition. Think of it! 
An “understanding” which is based on what? A compact or a 
contract? I had supposed it was too late at this stage of the his¬ 
tory of the Republic, in these times of peace, to invoke the propo¬ 
sition of a contract, existing between the States and the General 
Government. 

I knew that the theory of a contract was the parent of the in¬ 
famous heresy of secession, and I have believed that it was wiped 
out in blood from 1861 to 1865. More than 500,000 of the best, 
truest, most heroic, and bravest men that ever met on the field 
of battle—the blue and the gray, brethren all—rendered un their 
lives that that infamous proposition should be blotted out. and 
blotted out forever. Let the dead past bury its dead. I submit 
that under these circumstances it ill becomes this House to under¬ 
take, in the interest, if you please, of civilization, to invoke anew 
the proposition of a contract existing between a State and the 
United States. 

4010 


41 


In what kind of a condition does it leave the State of Utah, if 
this “ understanding ” exists? Let me give an illustration of the 
application of this “ understanding.” I suppose that the “ general 
welfare ” of the people of this great Republic, is as fundamental 
as any other proposition involved in this “understanding.” I 
imagine, and I can assume, that every State that came into the 
Union agreed to help to promote the “ general welfare.” Without 
such an “understanding,” no State would have been admitted. 
On the basis of this “understanding,” any State that is guilty of 
conduct that does not promote the “general welfare,” or whose 
people are, violates the “ understanding ” under which it came into 
the Union, and therefore can be disciplined by the United States. 
Especially must they not imperil the “general welfare.” 

I would like to inquire, under this “understanding,” if that 
theory is entirely true, if this view of the “general welfare” is to 
be followed, what would happen, for instance, to New Jersey, 
which is now the breeding ground of trusts and octopuses. 
[Laughter.] They are organizing corporations from $10,000,000 
anywhere up to $125,000,000, based on air, and almighty thin air 
at that. [Laughter.] 

There are a great many people that believe that the octopus. “ as 
a roaring lion, walketh about seeking whom he may devour,” and 
I would like to know why, if this proposition is true, if this nebu¬ 
lous, diaphanous, gauzy, dangerous, insufficient, metaphysical, 
chimerical, hypercritical, impalpable, evanescent and nonsensical 
theory is to be applied to this discussion [great laughter and ap¬ 
plause] I would like to know how it is to be applied in the exer¬ 
cise of our practice under our “general welfare” clause. Will it 
be necessary to suspend New Jersey from representation upon this 
floor in order that she may not hereafter thus interfere with the 
“general welfare.” [Renewed laughter and applause.] 

If not, why not? Is it necessary to say more about that propo¬ 
sition? [Laughter.] I shall now make this suggestion. I have 
discussed this subject up to this time upon the basis of the propo¬ 
sitions laid down by my friends on the majority of the committee. 

Mr. STEWART of New Jersey. Does not my friend think that 
the prohibition laws of Maine are not more against the general 
welfare and against the people than the corporation laws of New 
Jersey? 

Mr.' LITTLEFIELD. There are those who think the Maine 
prohibition law against the sale of rum, even worse than polygamy. 
I believe in the law. 

Mr. STEWART of New Jersey. Has the gentleman read the 
corporation laws of New Jersey? They are fifty years old and the 
result of Democratic administration. 

Mr. LITTLEFIELD. I have. I do not want to make any re¬ 
flection upon the State of New Jersey. I only used that as an 
illustration. [Laughter.] I have read the corporation laws of 
New Jersey. I have also read the excellent speech made before 
the Buffalo Bar Association by Mr. Keasby, advertising these 
corporation laws of New Jersey. 

Mr. STEWART of New Jersey. Have you read Governor 
Voorhees’sspeech at the Republican club dinner in New York City 
lately? 

Mr. LITTLEFIELD. I will be very glad to read it, if the gen¬ 
tleman will furnish it to me. There are a good many things I con¬ 
demn in the corporation laws. We have a corporation law in 
Maine, but we stop at $10,000,000. Yon do not stop them any¬ 
where. The only limitation that is placed upon them is the mini- 
4010 


42 


mnm. They shall not be incorporated for less than $1,000. You 
then go to anything below the stars. There is nothing^ but the 
gall of the men who organize the corporations to limit them. 
[Great laughter.] 

Mr. STEWART of New Jersey. Is there any limitation in the 
Maine law? 

Mr. LITTLEFIELD. There is a limitation that they shall not 
go beyond $10,000,000. 

Mr. STEWART of New Jersey. They could go on. 

Mr. LITTLEFIELD. We stopped at that. Let me venture 
the statement that this has no point in relation to this case. That 
is a question between Maine and New Jersey. 

Mr. STEW ART of New Jersey. And New Jersey can take care 
of these corporations. 

Mr, LITTLEFIELD. Just for a moment. Let me state that 
there was an effort in 1899 in the State of Maine to get a charter 
for the organization of the ice trust, with a capital of $60,000,000. 
They appeared before the committee on judiciary. Mr. J oseph H. 
Manley, who is one of the prominent members of the Republican 
party, was a member of that committee. The committee promptly 
turned it down because it was a trust. It went forthwith to New 
Jersey and got a charter. [Laughter.] 

“THE COMPACT OP STATEHOOD.” 

Compact is synonymous with contract. The idea of a compact 
or contract is not predicable upon the relations that exist between 
the State and the General Government. They do not stand in the 
position of contracting parties. The condition upon which Utah 
was to become a State was fully performed when she became a 
State. The enabling act authorized the President to determine 
when the condition was performed. He discharged that duty, 
found that the condition was complied with, and that condition 
no longer exists. 

What did Congress require by the enabling act? Simply that 
“said convention shall provide by ordinance irrevocable,” etc., 
and the convention did in terms what it was required to do. It 
was a condition upon the performance of which by the “conven¬ 
tion ” the admission of Utah depended. Its purpose accomplished, 
its office is gone, and as a condition it ceases to exist. No power 
was reserved in the enabling act, nor can any be found in the 
Constitution of the United States, authorizing Congress, not to say 
the House of Representatives alone, to discipline the people in, or 
the State of Utah, because the crime of polygamy or unlawful 
cohabitation has not been exterminated in Utah. Where is the 
warrant to be found for the exercise of this disciplinary, super¬ 
visory power? This theory is apparently evolved for the pur¬ 
poses of this case, is entirely without precedent, and has not even 
the conjecture or dream of any writer to stand upon. 

If it is suggested that the case of Texas vs. White (7 Wallace, 700) 
lends aid or comfort to this idea, I respectfully submit, without 
stopping to analyze the case, that it is based upon other grounds, 
and while the term “ compact” is mentioned but once, it is then 
mentioned for the purpose of showing that it was not a proper 
term to describe the relations existing between the State and the 
Federal Government. As the court said (page 776): 

When, therefore, Texas became one of the United States she entered into 
an indissoluble relation. All the obligations of perpetual union and all the 
guaranties of republican government in the Union attached at once to the 
State. The act which consummated her admission into the Union was some¬ 
thing more than a compact. It was the incorporation of a new member Into 
4010 


43 


the political body, and it was final. The union between Texas and the other 
States was as complete, as perpetual, and as indissoluble as the union be¬ 
tween the original States. There was no place for reconsideration or revoca¬ 
tion except through revolution or through consent of the States. 

I propose now for a few moments to take up the question as to 
whether this House is or is not without remedy in case Mr. Rob¬ 
erts has the oath administered to him in compliance with his full 
constitutional rights, though that proposition has no legitimate 
relation to the question which 1 have been discussing. His rights 
depend upon the Constitution, and they are to be so determined, 
irrespective of what the results may be. 1 do not know how 
others may feel in relation to their constituents, but I am ready 
to go back to my constituents in Maine and say I have acted con¬ 
scientiously, upon my construction of the Constitution, regardless 
of the consequences. 

At this point I will advert, to what, to my mind, is a significant 
circumstance in a kindred matter in the recent history of the 
House. During the sessions of the last House a distinguished gen¬ 
tleman, whom theRepublcan party has delighted to honor, who now 
presides over the deliberations of this House with so much ease, 
grace, dignity, and ability, was chairman of the committee which 
was passing upon the rights of General Wheeler, that gallant 
little hero of two wars, who by his heroic conduct in battle in the 
war of the rebellion, and later in the war against Spain, en¬ 
twined around himself the heartstrings of the American people. 
[Applause.] A great wave of sympathy welled up over the 
country, when it appeared that the gallant little general, who had 
left this House at the call of his country, came back and the 
question arose whether or not under the Constitution he could 
return to his seat as a member. I have no doubt the chairman of 
that committee could hear the mighty throb of the great Amer¬ 
ican heart, pulsating with patriotic fervor, and could feel the 
surges of the wave, of love and affection, which swept over the 
country, but what did he say? He made this sublime declaration 
as chairman of that committee: 

No mere patriotic sentiments should be permitted to override the plain 
language of the fundamental law. 

That magnificent sentence, as a part of the history of a free 
people, deserves to be “graven with an iron pen, and lead in the 
rock forever.” [Applause.] 

I ask the House, under these circumstances, not to be governed, 
or affected, in determining this great constitutional question by 
any fear of reproof, or apprehension as to the result, particularly 
in view of the fact that 800 members of this House, on the state¬ 
ment of my friend from Ohio, held this man upon the threshold 
for the purpose of investigating his rights as a member. I have 
seen nothing to indicate, upon the facts of this case, that there 
has been any change of feeling upon the part of members. Let 
nothing induce you to “ override the plain language of the funda¬ 
mental law.” 

EXPULSION. 

It is claimed that the House has no right to expel Mr. Roberts. 

I can not see how that fact, if it be a fact, has any legitimate tend¬ 
ency to establish the existence of a legal disqualification. I con- < 
tend that this House has an undoubted right to expel him, even for 
conduct unrelated to him as a member. The majority say his 
conduct must be “ inconsistent with his public trust and duty as ' 
such. ” 

I will quote from the report of the committee, and see whether 
their findings of fact do, or not, indicate that the gentleman from 
4010 


44 


Utah, from their standpoint, has been guilty of acts “inconsistent 
with his public trust and duty as such.” 1 think I can satisfy the 
House, from what they say, that he is richly entitled to the appli¬ 
cation of the rule, they establish, for expulsion. 

They say that “no government can possibly exist in the face 
of such practices.” Is that inconsistent—a man guilty of these 
things—would that be inconsistent “ with his public trust and 
duty as such? ” 

They say he is in “open war against the law and institutions of 
his country and this Congress which he seeks to enter.” Would 
that be inconsistent “ with his public trust and his duty as such?” 
If it is not, in heaven's name are they going to exclude him for 
it? If all these terrible things are not inconsistent “ with his pub¬ 
lic trust and his duty as such, ” do they exclude him for them and 
yet he can not be expelled? 

They further say: 

You have solemnly enacted certain laws; you have crystallized into stat¬ 
ute the will of the sovereign people. I bid defiance to your law. I will not 
^ recognize it. I here and now before your very eyes do the things you say I 
shall not do. I recognize a higher law than your man-made law—no law of 
yours can relieve me from the obligations which I thus take in defiance of 
your enactments. The only thing I promise not to do is to take a fourth wife. 

The case of a bribe taker, or of a burglar, or of a murderer is trivial, is a 
mere ripple on the surface of things, compared with this far-reaching, deep- 
rooted, audacious lawlessness. 

I will ask this House in all candor, (I am assuming the com¬ 
mittee have made their report judiciously, coolly, not hysterically,) 
is not that “ inconsistent with his public trust and duty as such.” 
or is it consistent with it? I have thought it was inconsistent 
with it. 

Now, here again, they say: 

The acts of Roberts are essentially disloyal. They deny the sovereign; 
they repudiate the lawful government. Look at them from whatever point 
. you will, they are subversive of government. They do not merely breed 
\ anarchy, they are anarchy. And this proposition is asserted not so much for 
reasons personal to the membership of the House, as because it goes to the 
very integrity of the House and the Republic as such. 

Now, is that inconsistent “ with his public trust and his duty 
as such? ” If not, what would be? Looking at “ them from what¬ 
ever point you will,” they say what? That “they are subver¬ 
sive of government.” Can it be said, without being ridiculous, 
that when a man is in here whose acts are “ subversive of the 
Government ” that that is not “ inconsistent with his public trust 
and his duty as such?” “They are anarchy.” Is that “consist¬ 
ent with his public trust?” I submit that if the acts of Roberts 
are such as is suggested, it seems to me that upon their standard 
there is ample justification for his expulsion. This spirit, called 
by them ‘ ‘ from the vasty deep, ” fades away when their own charges 
are applied to the legal propositions as they state them. If we ab¬ 
jure fervor, and think coolly, the result is the same. 

The power of expulsion is, however, unlimited, and not confined 
to acts related to the trust or duty of a member. They insist upon 
the contrary in order to frighten the House into exclusion. To ex¬ 
clude, the majority read into the clause relating to qualifications 
new provisions. To narrow the right of expulsion they read new 
conditions into that section. I take both clauses as they stand. 
I neither add to, nor take from. This precise question has been 
determined but once in this country. The opinion of the court in 
that case, an authoritative construction of this clause of the Con¬ 
stitution, was written by Chief Justice Shaw, conceded to be one 
of the greatest judges that ever sat in any court, in any land, at any 
time. 

4010 


45 


The constitution of ]M assachusetts contained no provision author¬ 
izing the expulsion of a member of the house of representatives. 
Joseph Hiss was expelled by the house, upon the ground that his 
conduct on a committee at Lowell “ was highly improper and dis- . 
graceful, both to himself and to this body of which he is a mem- V 
her.” This was not disorderly conduct in the house, and it is sig¬ 
nificant that the facts that made it “improper and disgraceful” 
were not disclosed by the case. 

Hiss, after his expulsion, was arrested at the instance of one of 
his creditors on mesne process and committed to jail. He brought 
a petition for habeas corpus on the ground that he was a member 
of the House of Representatives and as such privileged from ar¬ 
rest. This raised the precise question of the legality of his expul- -y 
sion, and, speaking through Chief Justice Shaw, the court, among 
other things, said: 

The question is whether the House of Representatives have the power to 
expel a member. 

After adverting to the fact that the Constitution did not in 
terms authorize expulsion, he says: 

There is nothing to show that the framers of the Constitution intended to 
withhold this power. It may have been given in other States, either ex ma- 
jori cautela, or for the purpose of limiting it, by requiring a vote of more 
than a majority. 

In the Constitution of the United States it was given evidently 
“for the purpose of limiting it,” as a two-thirds vote is required. 

Again: 

The power of expulsion is a necessary and incidental power to enable the 
house to perform its high functions, and is necessary to the safety of the . 
State. It is a power of protection. A member may be physically, mentally, 
or morally wholly unfit; he may be inflicted with a contagious disease, or in¬ 
sane, or noisy, violent, and disorderly, or in the habit of using profane, obscene, 
and abusive language. It is necessary to put extreme cases to test a principle. 

If the power exists, the house must neoessarily be the sole judge of the exi¬ 
gency which may justify and require its exercise. 

After having fully examined the law and practice of Parlia¬ 
ment, he says: 

But there is another consideration, which seems to render it proper to 
look into the law and practice of Parliament, to some extent. I am strongly 
inclined to believe, as above intimated, that the power to commit and expel 
its members was not given to the House and Senate, respectively, because it 
was regarded as inherent, incidental, and necessary, and must exist in ev¬ 
ery aggregate and deliberative body, in order to the exercise of its func¬ 
tions, and because without it such body would be powerless to accomplish the 
purposes of its constitution; and therefore any attempt to express or define 
ft would impair rather than strengthen it. This being so, the practice and 
usage of other legislative bodies, exercising the same f unctions, under simi¬ 
lar exigencies; and the reason and grounds, existing in the nature of things, 
upon which their rules and practice have been founded, may serve as an ex¬ 
ample and as some guide to the adoption of good rules when the exigencies 
arise under our Constitution. 

But independently of parliamentary custom and usages, our legislative 
houses have the power to protect themselves by the punishment and expul¬ 
sion of a member. 

“It is urged that this court will inquire whether the petitioner has been 
tried. But if the House have jurisdiction for any cause to expel, and a court 
of justice finds that they have in fact expelled, he then held their action was 
conclusive, and dismissed the petition.” {Hiss vs. Bartlett, S Gray, U68.) 

It is instructive on this point to note that this paragraph of the 
Constitution, as originally drawn, read: 

Each House may determine the rules of its proceedings; may punish its 
members for disorderly behavior; and may expel a member. 

Making three distinct clauses separated by semicolons, eliminat¬ 
ing the idea that the words “disorderly conduct” have any effect 
in limiting the power to expel, which appears in the clause imme- 1 
diately following. 

4010 


46 


This extract from the records of the debates in the Federal Con¬ 
vention shows clearly why the two-thirds provision was inserted 
in the expulsion clause; 

Mr. Madison observed that the right of expulsion (Article VI, section 6) was 
too important to be exercised by a bare majority of a quorum, and in emer- 
1 gencies of faction might be dangerously abused. He moved that “with the 
concurrence of two-tnirds” might be inserted between “may” and “expel.” 

Mr. Randolph and Mr. Mason approved the idea. 

Mr. Gouverneub Morris. This power may be safely trusted to a ma¬ 
jority. A few men, from factious motives, may keep in a member who 
ought to be expelled. 

Mr. Carroll thought that the concurrence of two-thirds, at least, ought to 
be required. • 

On the question requiring two-thirds in cases of expelling a member, ten 
States were in the affimative; Pennsylvania divided. 

Article VI, section 6, as thus amended, was then agreed to nem 
con. {Journal of Constitutional Convention (Madison), Volume 
V, page 500 .) 

While 1 think this Hiss case establishes beyond successful con¬ 
troversy the power of expulsion as discretionary and unlimited, 

I it is proper to note that no decided case, or elementary writer, mili¬ 
tates against it. I give all that I have found on the question. 

In discussing this question, the court, in State vs. Jersey City 
{25 N. J. L., 539), said: 

The power vested in the two Houses of Congress by the Constitution, Ar¬ 
ticle I, section 5, paragraph 2, is in different phraseology; it is, that “each 
House may determine the rules of its proceedings, punish its members for 
disorderly behavior, and, with the concurrence of two-thirds, expel a mem¬ 
ber.” Under this power, the Senate in 1797 expelled a member of that body 
for an offense not committed in his official character as a member, nor during 
a se.ssion of Congress, nor while the member was at the seat of Government. 
(Blount’s case. Story’s Commentaries on the Constitution, chapter 12, para¬ 
graph 836.) But it is not clear that the power to expel is limited by the Con¬ 
stitution to the cause of disorderly behavior. 

Evidently without having in mind the accurate use of the term 
“qualification,” as used in the Constitution, the court, in State 
ex rel. vs, Gilmore (20 Kansas, 554), said: 

The Constitution declares (Article H. section 8) that “ Each House shall be 
judge of the elections, returns, and qualifications of its own members.” This 
IS a grant of power, and constitutes each House the ultimate tribunal as to 
the qualifications of its own members. The two Houses acting conjointly do 
not decide. Each House acts for itself and by itself: and from its decision 
there is no appeal, not even to the two Houses. And this power is not ex¬ 
hausted when once it has been exercised and a member admitted to his seat. 
It is a continuous power, and runs through the entire term. At any time 
during the term of office each House is empowered to pnss upon the present 
qualifications of its own members. 

Story says: 

And as a member might be so lost to all sense of dignity and duty as to 
disgrace the House by the grossness of his conduct, or interrupt its delibera¬ 
tions by perpetual violence or clamor, the power to expel for very aggravated 
misconduct was also indispensable, not as a common, but as an ultimate 
redress for the grievance. But such a power, so summary and at the time so 
subversive of the rights of the people, it was foreseen, might be exerted for 
mere purposes of faction or party, to remove a patriot or to aid a corrupt 
measure; and it has, therefore, been wisely guarded by the restriction that 
j there shall be a concurrence of two-thirds of the members to justify an expul¬ 
sion. * * * 

In July, 1797, William Blount was expelled from the Senate for “ a high 
misdemeanor, entirely inconsistent with his public trust and duty as a Sen¬ 
ator.” The offense charged against him was an attempt to seduce an Ameri¬ 
can agent among the Indians from his duty, and to alienate the affections and 
confidence of the Indians from the public authorities of the United States, 
and a negotiation for services in behalf of the British Government among the 
Indians. It was not a statutable offense, nor was it committed in his official 
' character; nor was it committed during the session of Congress, nor at the 
seat of Government. Yet, by an almost unanimous vote he was expelled 
from that body; and he was afterwards impeached (as has been already 
stated) for this, among other charges. It seems, therefore, to be settled by 
the Senate, upon full deliberation, that expulsion may be for any misde- 
4010 


47 


meanor which, though not punishable by any statute, is inconsistent with 
trust and duty of a Senator. —Story on the Constitution, volume 1, page 

60/. 

Paschal states: 

It seems to be settled that a member may be expelled for any misdemeanor 
wmch, though not punishable by any statute, is inconsistent with the trust and 
duty of a member. (Blount’s Case, 1 Story Const., paragraph 838; Smith’s 
Case, 1 Hall’s L. J,, 459; Brook’s Case, for assaulting Senator Sumner in the 
Senate Chamber for words spoken in debate.) It extends to all cases where 
the offense is such as in the judgment of the House unfits him /or parliamentary 
duties. (Paschal’s Annotated Constitution, page 87, paragraph 49.) 

It has not yet been precisely settled what must be the disorderly behavior 
to incur punishment, nor what kind of punishment is to be inflicted; but it 
can not be doubted that misbehavior out of the walls of the House or within 
them, when it is not in session, would fall within the meaning of the Consti¬ 
tution. Expulsion may, however, he founded on criminal conduct committed 
in any place, and either before or after conviction in a court of law. {Rawle 
on the Constitution, 2d ed., 47.) 

Cooley is specific: 

Each House has also power to punish members for disorderly behavior, and 
other contempts of its authority, as well as to expel a member for any cause ' 
which seems to the body to render it unfit that he continue to occupy one of 
its seats. This power is generally enumerated in the Constitution among 
those which the two Houses may exercise, but it need not be specified in that 
instrument, since it would exist whether expressly conferred or not. It is 
“ a necessary and incidental power to enable the House to perform its high 
functions, and it is necessary to the safety of the State. It is a power of 
protection. ” 

“A member may be physically, mentally, or morally wholly unfit; he may 
be afflicted with a contagious disease, or insane, or noisy, violent, and dis- , 
orderly, or in the habit of using profane, obscene, and abusive language.” 
And, “ independently of parliamentary customs and usages, our legislative • 
Houses may have the power to protect themselves by the punishment and 
expulsion of a member,” and the courts can not inquire into the .justice of 
the decision, or even so much as examine the proceedings to see ivhether or 
not the proper opportunity for defense was furnished. {Cooley's Constitu¬ 
tional Limitations, pages 159, 160.) 

Since there has been repeated occasion to take steps against members of 
each House under each of these two clauses, and since the majority has never 
taken this standpoint, it may now be regarded as finally settled that that 
interpretation is correct which is the broader and at the same time, accord¬ 
ing to ordinary speech, unquestionably the more natural one. Both Houses 
of Congress must have been granted every power needed to guard themselves 
and their members against any impropriety on the part of a member and to 

S reserve their dignity and reputation among the people. It is wholly for f 
tiem to say what conduct they are to regard as dishonorable enough to re¬ 
quire expulsion. An appeal from their decision lies only to the court of / 
public opinion, a court which brings in its verdict at the elections. ( Von ^ 
Holst's Constitutional Law of the United States, 102.) 

The power of expulsion is unlimited, and the judgment of a two-thirds 
majority is final. {Pomeroy on Constitutional Law, page 139,1895.) 

It seems necessary also to remark that a member may be expelled, or dis¬ 
charged from sitting as such, which is the same thing in milder terms, for 
many causes, for which the election could not he declared void. {Cushing, Law 
and Practice Legislative A.ssemblies, gage'S3, section 8L) 

The power to expel a member is naturally and even necessaraly inci¬ 
dental to all aggregate, and especially all legislative bodies; which, without 
such power, could not exist honorably, add fulfill the object of their creation. 

In England this power is sanctioned by continued usage, which, in part, con¬ 
stitutes the law of Parliament. {Ibid., page 251, section 625.) 

Blout was expelled from the Senate for an offense inconsistent with public 
duty, but it was not for a statutory offense, nor was it in his official character, 
nor during the session of Congress, nor at the seat of government. The vote 
of expulsion was 25 to 1. 

The motion to expel a member may be for disorderly behavior, or disobe¬ 
dience to the rules of the House in such aggravated form as to show his un¬ 
fitness longer to remain in the House, and the case above cited, as well as the 
reason of the provision, would justify the expulsion of a member from the 
House where his treasonable and criminal misconduct would show his unfit¬ 
ness for the public trust and diity of a member of either House. But expul¬ 
sion, which is an extreme punishment, denying to his constituency the right 
to be represented by him, can only be inflicted by the concurrence of two- 

4010 


48 


thirds of the House, and not by a bare majority only. (Citing Story on the 
Constitution, section 837.) Tucker on the Constitution, page h29. 

It has since been held by the House of Representatives that a member duly 
elected could not be disqualified for a cause not named in the Constitution, 
such as immorality, and that the remedy in such a case, if any, was expulsion. 

I The distinction between the right to refuse admission and the right of expulsion 
upon the same ground is important, since the former can be done by a majority 
I of a quorum, whereas expulsion requires the vote of two-thirds. The ques- 
I tion can not be said to have been authoritatively decided. Foster on the 
Constitution, page S67. 

Mr. Foster’s attention does not appear to have been directed to 
the case of Hiss vs. Bartlett, as it is in point on his doubt if it relates 
to the power of expulsion, and he does not refer to it. 

Expulsion is generally reserved for offenses which render members unfit 
for a seat in Parliament and which, if not so punished, would bring discredit 
upon Parliament itself. Members have been expelled as being in open rebel¬ 
lion, as having been guilty of forgery or perjury or frauds and breaches of 
trtist, of misappropriation of public money, of conspiracy to defraud, of cor¬ 
ruption in the administration of justice, or in public office, or in the execu¬ 
tion of their duties as members of the House, of conduct unbecoming the 
character of an officer or gentleman, and of contempts, libels, and other of¬ 
fenses committed against the House itself. {May's Parliamentary Practice 
tenth edition 189S, page 55.) 

These authorities clearly establish that conduct “ inconsistent 
with the public trust and duty as such ” or related to the duties of 
a member is not an indispensable element of the right to expel. 
“It is a power of protection.” Protection of what? Certainly 
not the member expelled; necessarily the House, its dignity, char¬ 
acter, “ and reputation among the people.” It seems difficult for 
some to appreciate the distinction between exclusion and expul¬ 
sion. 

Now I suppose it will be conceded that Sir Roundell Palmer 
(Lord Selborne ), a distinguished advocate and counsel at the Eng¬ 
lish bar, was a man of some ability. In the O’Donovan-Rossa 
debate, in 1870, he used this expression, very happily contrasting 
the power of expulsion, with the right of exclusion: 

A man may be expelled from the House for certain offenses, though not 
legally disqualified. 

Now, the gentleman from Ohio [Mr. Tayler] sfij^v's that is “ri¬ 
diculous and absurd,” but I have no doubt that Sir Roundell 
Palmer will survive the suggestion. Palmer says that a man may 
be expelled from the House for certain offenses, “though not le¬ 
gally disqualified.” And that is our proposition. 

LEGISnATIVE PRECEDENT. 

I examine the legislative precedents for a few moments, and 
then I shall be through. 

The Marshall case, which is cited from the Senate as against 
the power to expel, was overruled by the Smith case, to which 
the report of the committee devotes two lines. The reason for this 
brief mention will clearly appear when that case is stated. 

SMITH CASE. 

John Quincy Adams made the report for the committee, which 
was unanimous. You wdll find it on page 720, Senate Election 
Cases. It states the law thus: 

By letter of the Constitution the power of expelling a member is given to 
each of the two Houses of Congress, without any limitation other than that 
which requires a concurrence of two-thirds of the vote to give it effect. 

And how near do you suppose the Senate, under that proposi¬ 
tion, came to expelling Smith? The vote was just 19 to 10, lack¬ 
ing one vote of expulsion. That is a precedent cited on the other 
4010 


side. It is a precedent distinctly in our favor. The Senate 
squarely held that they had jurisdiction, because a majority vote 
was sufficient to sustain jurisdiction. In the Roach and Herbert 
cases, as stated by the majority, it was not even contended that 
the Senate or the House did not have the power to expel. In fact, 
the inference is that the power was conceded, but was not exer¬ 
cised. 

MATTESON CASE. 

The Matteson case, in my judgment, does not warrant any such 
inference. Matteson was charged with inciting parties to corrupt 
the House, and with slandering the House by charging that a large 
number of members had pledged themselves not to vote for measures 
granting money or lands un less they were paid for it. Upon these 
charges a resolution for his expulsion was pending in the Thirty- 
fourth Congress, and was about to be adopted, when he prevented 
further action by resigning. Meanwhile, and before the hearing 
by the committee, he had been elected to the Thirty-fifth Congress. 
In the Thirty-fifth Congress a resolution reciting these facts and 
declaring Matteson expelled was, after a long debate, referred to 
a committee, of which Mr. Seward, of Georgia, was chairman. 

The debate discloses that the principal ground relied upon in 
opposition to the resolution was that proceedings for expulsion 
were analogous to a criminal prosecution at common law, and 
that Matteson, having in effect been once punished by the Thirty- 
fourth Congress, could not properly be punished a second time 
for the same offense. In this respect the facts are not parallel to 
Mr, Roberts’s case, as it appears that the offense with which he is 
charged is still continuing. The committee recommended the 
adoption of a resolution “that it is inexpedient to take further 
action in regard to Orasemus B. Matteson.” The whole subject 
was afterwards laid on the table by a vote of 1)6 to 69, and this 
ended the action of the House. 

Mr. Seward, in urging the adoption of the recommendation, in¬ 
correctly stated the action of the Senate in the Smith case in 1808. 
Smith was indicted for treason in Virginia, as an accomplice of 
Aaron Burr. Mr. Seward states: 

Mr. Adams made a report to the Senate setting forth the crime for which 
the party was arraigned; and when the vote was taken, there was not a suffi¬ 
cient number of the members of the Senate voted in favor of jurisdiction over 
the cause, and the Senate refused a conviction on the charge. They acted 
upon the principle that the criminal courts had jurisdiction when either the 
Constitution or laws of the United States were violated, because the facts 
established were clear, and the refusal to convict must turn upon the want 
of jurisdiction and power. 

It was claimed in the Smith case that the Senate had no juris¬ 
diction until after a conviction upon the indictment. The unani¬ 
mous report of the committee, as heretofore stated, held otherwise. 

There was no separate vote as to whether the Senate had juris¬ 
diction. The report recommended a resolution expelling Smith 
and failed, as I have stated, lacking only one of the necessary 
two-thirds. 

When Mr. Seward stated that the “ facts established were clear,” 
and the case must have turned upon “want of jurisdiction and 
power,” he presumed upon the lack of information on the part of 
the House, or himself was lacking in information, as the record 
discloses that the existence of the facts was bitterly contested, and 
page after page is devoted to their discussion, and a majority vote 
would have clearly been sufficient to determine the question of 
jurisdiction or power. 

4010-4 


50 


The Matteson case was in 1858. With the exception of a sug¬ 
gestion that a case had been decided in Massacjhusetts, the purport 
of which was not stated, no reference was made to the Hiss case, 
though it was published in 1857. Although the only decided case 
> in the country, it does not appear to have been cited in any debate 
on this question. 

BROOKS AND AMES CASES. 

Brooks and Ames were charged with complicity in the Credit 
Mobilier frauds and with bribing members of Congress some five 
or six years before the session of Congress, when the resolution 
was pending, to expel them. Their case was referred to a sub¬ 
committee, and the subcommittee reported in favor of expulsion. 

For the purpose of showing this House the amount of delibera¬ 
tion and examination upon which other Houses have acted when 
they have established precedents that are invoked here to control 
our action, I want to call your attention to the report of the 
Judiciary Committee, headed by Benjamin F. Butler, in that case. 
A resolution involving the question as to whether Colfax, then 
Vice-President, could be impeached for an offense committed be¬ 
fore his election as Vice-President, was referred to the Judiciary 
Committee on the 20th day of February, 1873, and they reported 
back to the House on the 24th day of February, 1873. 

That was only three days, at the outside, that this committee 
had in which to investigate, first, the question committed to them, 
the great constitutional proposition as to whether or not the Vice- 
President of the United States could be impeached for an offense 
committed before he took the office; second, the question as to 
whether or not the House had the right to exclude, and third, they 
went on to discuss the question as to whether, or not, the House 
had the power to expel, the last two questions never having been 
referred to them. In three days’ time that committee undertook 
to thoroughly investigate, those three great constitutional proposi¬ 
tions and report to the House. 

Now, as a matter of interest, I want to show you what they said 
on this question of exclusion. The majority did not quote this 
from the report of that committee. They said: 

Your committee believe that there is no man or body of men who can add 
to or take away one jot or title of these qualifications. The enumeration of 
. such specific qualifications necessarily excludes every other. 

I submit that if this report of that committee is good authority 
to sustain their proposition that you have no power to expel, it is 
equally good authority on this proposition that you have no power 
to exclude, when they state it with a great deal more emphasis. 

The value of an opinion depends upon the care exercised in its 
preparation. On this point of time, Mr. Clarkson N. Potter made 
this suggestion, which is a part of his report: 

I dissent from the report, but I concur in the recommendation to dis¬ 
charge the committee, for want of time to make further investigation and for 
reasons expressed in views submitted herewith. 

This is the report upon which they rely. The special commit¬ 
tee, of which Poland, of Vermont, was chairman, held that the 
power of expulsion was unlimited. They said: 

' The principal purpose of expulsion is not a punishment, but to remove a 
member whose character and conduct show that he is an unfit man to par¬ 
ticipate in the deliberations and decisions of the body and whose presence 
. in it tends to bring the body into contempt and disgrace. 

Every consideration of justice and sound policy would seem to require 
that the public interests be secured, and those chosen to be their guardicms be 
4010 


51 

free from the pollution of high crimes, no matter at what time that pollution 
had attached. 

If two-thirds of the House shall see fit to expel a man because they do not 
like his political or religious principles,, or without any reason at all, they 
have the power, and there is no remedy except by appeal to the people. Sucn 
exercise of the power would be wrongful and violative of the principles of 
the Constitution, but we see no encouragement of such wrong in the views 
we hold. 

That report is signed by George W. McCrary. “ On the second 
day of the session the gentleman from Ohio [Mr. Tayler] read 
from Judge McCrary’s work, with an air of authority, to halt this 
man at the bar of tHis House. I notice that this air has disap¬ 
peared, and they say they do not quote his work “as being authori¬ 
tative in itself.” They have probably since learned his views on 
expulsion. If Judge McCrary was sufiScient authority to justify 
challenging a member at the threshold, why is he not equally as 
good an authority for the proposition that this House has unlim¬ 
ited power of expulsion? 

CANNON CASE. 

The Cannon case is indefinite and uncertain, and was affected 
by several independent considerations, and can not fairh be said 
to determine anything. 

SCHUMAKER AND KING. 

In this case not only did the minority of the Judiciary, consist¬ 
ing of Scott Lord, W. M. Lawrence, George F. Hoar, ai.d B. G. 
Caulfield, hold that— 

It will be seen that there are no words of limitation on the power to expel, j 
which seems to have been left to the good sense and discretion of each House. I 

but George W. McCrary again, in a separate note, said: 

But where the charge is that a member of the House has received money \ 
to be used by him to corrupt legislation in Congress, for which offense no in- I 
dictment has been found, I think the House may properly take jurisdiction, 
though the offenses charged were committed prior to his election. 

In this case, the fact that everything for which the gentleman 
from Utah is to be excluded, now exists, and in a very aggravated 
form, by reason of its continuance, if the majority are correct, 
eliminates the element of past offense, and is a complete answer 
to the objection raised against expulsion. 

It is proper to observe that the determinations of the courts and 
the opinions of eminent legal authors unexcelled in reputation and 
learning are entitled, upon these propositions, to great weight, as 
they are in every instance the result of careful, dispassionate, and 
disinterested research and sound reasoning, unaffected by consid¬ 
erations that must necessarily have been involved in legislative 
precedents. The two-thirds limitation upon the right to expel not ., 
only demonstrates the wisdom of the fathers, but illustrates the ^ 
broad distinction between exclusion and expulsion. 

A small partisan majority might render the desire to arbitrarily 
exclude by a majority vote, in order to more securely intrench 
itself in power, irresistible. Hence its exercise is controlled by 
legal rules. In case of expulsion, when the requisite two-thirds 
can be had, the motive for the exercise of arbitrary power no 
. longer exists, as a two-thirds partisan majority is sufficient for 

every purpose. Hence expulsion has been safely left in the dis- 
■ cretion of the House, and the safety of the members does not need ; 
^he protection of legal rules. 

It seems to me settled upon reason and authority that the power 
be House to expel is unlimited, and that the legal propositions 


\ 


„ I 

0 vn 119 789 5l 

J 



OF CONGRFQc 


52 


involved may be thus fairly summarized: The power of exclusion 
is a matter of law, to be exercised by a majority vote, in accord¬ 
ance with legal principles, and exists only where a member-elect 
lacks some of the qualifications required by the Constitution. The 
power of expulsion is made by the Constitution purely a matter 
of discretion, to be exercised by a two-thirds vote, fairly, intelli¬ 
gently, conscientiously, with a due regard to propriety and the 
honor and integrity of the House and the rights of the individual 
member. For the abuse of this discretion we are responsible only 
to our constituents, our consciences, and our God. 

I believe that Mr. Roberts has the legal constitutional right 
to be sworn in as a member. The facts are such that I further 
believe the House, in the exercise of its discretion, is not only 
justified, but required, by every proper consideration involved, to 
expel him promptly after he becomes a member. 

I address myself to the intelligence, judgment, and conscience 
of the House, not to its prejudices. Sympathies, prejudices, tend¬ 
encies, opinions, and conditions may change; principles never. 
The Great Charter is our only guide. May the Constitution re¬ 
main inviolate. [Great Applause.] 


4010 


o 


/ 

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